The words of the poet Friedrich Schiller, “So test therefore, who join (forever),” apply not only to relationships between romantic partners, but to relationships between employers and employees as well, since the employer and employee enter into a permanent debt relationship upon concluding an employment contract. Once the federally mandated protection against unlawful dismissal applies (i.e., after six months), the employee can be terminated only under very restricted conditions.
Initial Position: The Employer’s Right to Ask
The employer, understandably, would like to have as much information as possible about an applicant and his/her professional and personal/social qualifications prior to concluding an employment contract, in order to find out whether the applicant is “suitable.” At a job interview and/or in a personnel questionnaire, the applicant answers questions regarding skills, knowledge, and experience; provides details about his/her vocational training or professional background; and even mentions personal interests and hobbies. However, the employer’s interest in such information is in opposition to the applicant’s personal rights and his/her right to privacy, as well as the protection of personal data. Who would like to admit to living with his/her parents, collecting weapons, reading comic books, having a string of traffic violations, keeping exotic pets, or preferring to spend the weekend in video arcades? From the employer’s point of view, all this information might be of interest, but what does it have to do with the job?
The following applies: If any particular information is relevant to the position and the work, it is admissible to ask about it. Thus, a transport company is permitted to ask a potential truck driver about his criminal record as it relates to traffic violations. The company may also ask about vision defects and alcoholism, but the same questions may not be asked of a secretary or accountant. (The latter may be asked about his criminal record with regard to breaches of trust or offenses against property.) The less a question is connected to the job and its requirements, and the more it pertains to the person him- or herself, the less admissible it is. Thus, admissible questions must be answered truthfully, but in the case of inadmissible questions, the applicant is granted the “right to lie.”
Many companies refuse to settle for the information provided by the applicant on job applications and in personal interviews. So-called background checks (also known as “pre-employment screenings”) therefore enjoy great popularity; aimed at “enlightening” the employer on the applicant’s background, they may be conducted either online or off. And just as employers are increasingly utilizing social-networking sites in the hiring and recruitment process, employees are engaging professional service providers like myID.com to improve their online reputations.
For employers, the most “popular”—i.e., the most frequently used—measures include verification of documents and certificates presented, examination of the applicant’s financial situation and criminal record, inquiries into his/her physical- and/or mental-health status, and “Googling” the applicant’s name. What is actually permitted?
The admissibility of background checks is generally based on two principles:
- The principle of necessity: The data must be necessary for making the decision to employ the candidate. However, the employer must be guided by the rules and principles that govern the right to ask questions during an interview.
- The principle of direct inquiry: As a rule, personal data must be collected directly from the person in question, i.e., the applicant. Data may be collected without the applicant’s participation and/or from a third party only if this has been provided for or compulsorily stipulated by legal provision, or if collecting the information directly from the applicant would entail disproportionate time and effort and if an objective observer would conclude that the applicant’s right to privacy does not supersede the employer’s need to obtain this information from a third party. Furthermore, the applicant must always be informed of the hirer’s decision to contact third parties.
Verification of References
An applicant may be asked to furnish documents for the verification of qualifications (academic studies/vocational training, language skills), professional history, and prior employment. In order to prevent forgery, an employer may ask for the presentation of originals/certified copies.
Calling the previous employer also is permissible, on the grounds that it is necessary to verify the information given by the applicant, although the development in legal practice remains to be seen. In any case, the applicant must be informed about this measure also.
Examination of a candidate’s financial situation is admissible only when the position necessitates a high degree of trust, as in the case of a top decision maker, an accountant who works with large sums, or an official who may be subjected to bribery attempts.
However, the employer does not have an individual right to information vis-à-vis the General German Credit Protection Agency (Schutzgemeinschaft für Allgemeine Kreditsicherung e. V.; SCHUFA); at best, the employer can ask the applicant to submit a SCHUFA report, which discloses all loan agreements pertaining to money and goods that the applicant has concluded with SCHUFA’s contractual partners. However, taking this step can be highly problematic, since the report usually reveals facts about the employee’s private life. Such information goes way beyond the facts necessary to make a hiring decision and thus should not be “necessary.”
Questions about possible criminal records and/or investigations may be asked only insofar as they are relevant to the type of vacancy to be filled, e.g., criminal records pertaining to offenses against property in the case of accountants and cashiers, or to traffic offenses in the case of drivers.
However, criminal records must not be revealed if they have been deleted from the applicant’s certificate of good conduct (a formal certificate that registers any convictions the individual may have) in accordance with the provisions of the German Federal Central Register of Convictions (Bundeszentralregister; BZRG). All entries are deleted after a certain period, which, depending on the seriousness of the conviction, lasts between five and 15 years.
However, while the certificate of good conduct may be requested by the employer, it may be obtained from the police only by the applicant; the employer does not have the right to request this information directly from the competent authority.
Inquiries into the candidate’s physical health are governed by strict standards, since these affect the applicant’s private sphere.
Questions regarding illness and/or severe handicaps are inadmissible unless the lack of the same constitutes an “important and decisive professional requirement” and considerably affects the applicant’s qualification for the job. Thus, in the case of a pilot or driver, questions regarding vision defects may be asked, and in the case of health-care personnel, it is permitted to ask about contagious diseases if colleagues, clients, or patients could be put at risk.
Requests for a health certificate and/or medical/psychological checkup may be admissible if the position requires a certain level of physical and/or mental fitness—as in the case of professional athletes, physical therapists, pilots, food-service workers, and health-care personnel—but the voluntary participation of the applicant is required. Diagnostic findings and/or medical results may be disclosed only with the applicant’s consent.
An internet inquiry can provide the employer with extensive data about the candidate, but information that is irrelevant to the hiring decision should not be pursued. An internet inquiry is admissible only if the data in question is “publicly available” and if the interests of the applicant do not obviously outweigh the legitimate interests of the employer.
“Publicly available” refers to information that can be gathered by means of search engines such as Google and Yahoo. This probably also includes the data contained in social networks like Facebook, which can be gathered without registering with the network via a search-engine query.
With regard to research using social networks, it is necessary to determine the accessibility and orientation of the network. Spare-time-oriented networks such as Facebook are usually used exclusively for private purposes; furthermore, an employer would have to log on and/or be a user itself, which means the data contained in such networks is not publicly available.
Professional networks such as XING and LinkedIn must be assessed differently; since they are usually used for commercial reasons, any data posted there by an applicant can be considered publicly available even if the employer has to log on to the network, provided that viewing of the profile has not been restricted to the applicant’s “friends.”