01.06.2022 | Employment Law
About one third of German companies use background checks or pre-employment screenings as part of their personnel selection process. Particularly when filling a position of trust or one with considerable security risks, employers often try to learn more about the applicant’s qualifications, interests as well as personal (e.g. health) or security-specific risks before making a decision.
Employers often search for background information about a job applicant in internet search engines (such as Google) as well as various social networks (such as Facebook, LinkedIn, Xing, etc.). From a data protection perspective, only those - publicly accessible - personal data may be processed that are necessary for the decision on the establishment of an employment relationship or for its implementation (e.g., training, professional experience, and qualification). Employers may therefore in particular access the information made available by applicants precisely for this purpose in career networks. Private information, such as ideology or sexual orientation, which is often carelessly shared, e.g., on Facebook, may not be used by employers.
Checking with (former) employers
Obtaining information from the previous employer may also be legally permissible, at least with regard to the contents of the copies of references submitted by the applicant during the application procedure. In any case, it is advisable to request information from the former employer only with prior consent of the applicant.
Information from authorities
Employers are not allowed to make direct enquiries with SCHUFA. Without the permission of the person in question, the employer has no right to view the credit rating data. However, he or she can obtain the information by requesting an applicant to submit a personal report of their SCHUFA. However, this is only permissible for employment relationships with a special position of trust.
The request to submit a police certificate of good conduct (polizeiliches Führungszeugnis) is generally not permissible. A certificate of good conduct provides information about entries in the Federal Central Register, without regard to sector- or employment-specific relevant criminal offences. However, employers are only allowed to ask applicants for information on criminal offences related to the job.
Employers should be careful when doing background checks to avoid potential claims for damages from applicants and fines under the GDPR.