Hiring the right resources for your company is a fundamental pre-requisite for taking your company on a growth trajectory. But how does a HR ensure that the potential candidate will be the right candidate for the organization? This is where ‘pre-emptive screening’, also known as ‘background check’, ‘criminal screening’ or ‘background screening’, comes into play. This involves undertaking a thorough check on the credentials of the employee prior to hiring them. Few checks may involve involvement of the potential recruit along with prior his knowledge (viz checking education degrees, salary slips, etc), whereas few checks may be undertaken by way without the prior knowledge of the potential recruit (viz feedback from previous organizations, checking the criminal record, etc). Leading corporates have implemented stringent pre-emptive checks to detect falsification of records. ‘Pre-emptive screening’ may also involve the intervention of specialist agencies, who may be outsourced with the task of conducting background checks on employees.
The purpose of this article is to analyze laws governing ‘pre-emptive screening’ in India.
Indian laws governing ‘pre-emptive screening’
It would be apt to say that there is a long way before ‘pre-emptive screening’ becomes an integral part of hiring processes in India. Presently, ‘pre-emptive screening’ is majorly undertaken in sophisticated organizations for senior management employees. Others seem to rely on personal references and informal checks while hiring potential recruits.
In India, there is no dedicated law governing ‘pre-emptive screening’ in India. Therefore, there is no legal requirement/directives in India to conduct background checks on prospective employees, except in certain cases like banks and requirements under certain certifications. Therefore, we need to be guided by other general laws which may be applicable to such activities. The biggest challenge with conducting ‘pre-emptive screening’ is the possible non-compliance with privacy norms. As discussed above, a fundamental aspect of ‘pre-emptive screening’ is fishing out information with or without the prior consent of the potential recruit. Whether such ‘data-digging’ will adversely affect the privacy of the potential recruit is purely a question of fact, and will depend on a case-to-case basis.
Until recently, Indian employers may not have faced any legal repercussions on account of conducting ‘pre-emptive screening’ without the prior permission of the potential recruit since the legal regime governing privacy in India was fluid. However, India is slowly maturing to an advanced regime in privacy laws, and this space has witnessed accelerated activity over the past one year.
A recent 9 (nine) judge bench of the Hon’ble Supreme Court (SC) was constituted to consider whether privacy is a fundamental right. The bench delivered a unanimous landmark verdict on 24 August 2017, in Justice K S Puttaswamy (Retd) v Union of India & Ors (Writ Petition (Civil) No 494 of 2012), holding that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution of India. While this judgment mandates government to recognize ‘right to privacy’ of individuals, a lacunae in law persists for recognition by private persons (including businesses) of ‘right to privacy’ of individuals.
The present law governing the collection and use of sensitive and personal information is the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (SPDI Rules). However, these rules cover limited information like password, financial information, physical, physiological and mental health condition, sexual orientation, medical records and history and biometric information. The scope of data privacy is proposed to be expanded with the Data (Privacy and Protection) Bill (Bill), 2017, a private member’s bill pending before the Lok Sabha (Lower House of the Parliament). Section 2(xxii) read with Chapter III of the Bill require private businesses to comply with applicable laws to obtain ‘personal data’ of individuals - the scope of ‘personal data’ is wider than SPDI Rules and also includes any expression of opinion about that person. Accordingly, compliance levels will certainly increase for collecting information relating to ‘pre-emptive screening’.
International best practices on ‘pre-emptive screening’
Employers in developed countries take upfront consent of potential employees for conducting background checks. During the hiring process, employers require employees to sign a ‘release form’ whereby they are required to verify information presented on the employment application and to give consent to the employer procuring consumer reports and investigative consumer reports for that purpose, to the extent permitted by law. The consent is obtained for information about the potential recruit’s educational record, character and personal reputation. Criminal record check and drug screening is usually preformed after the job offer is rolled out. The employer is given an opportunity, upon furnishing written request, to be advised of the name and address of each consumer reporting agency from which a consumer report or investigative report is obtained by the employer.
Employers in India must apply adequate risk-mitigation safeguards to ensure they are in compliance with extant laws. Employer must obtain necessary consents from the potential recruit during the first rounds of assessments for conducting ‘pre-emptive screening’. Further, engaging in any kind of unethical practices, either directly or through a third party, for extracting information about the potential recruit should be avoided under all circumstances.