overcoming the challenges of international background · pdf fileovercoming the challenges of...

Overcoming the

Challenges of

International

Background Screening

Presented by: Robert Capwell

Chief Knowledge Officer

Employment Background

Investigations, Inc.

Today’s Presenter

Robert Capwell Chief Knowledge Officer

Employment Background Investigations, Inc. (EBI) www.ebiinc.com

Past Chair - NAPBS

(National Association Of Professional Background Screeners)

* Presenter is not a licensed attorney - Nothing in this

presentation should be deemed as legal advice. Readers should

consult with their own legal counsel to determine their individual

legal responsibilities.

Agenda

U.S. Immigration Statistics

Risks of Not Screening

Use of Watch Lists

Don’t Rely on Government Screening of Foreign Nationals

Challenges of International Background Checks

Getting the Right Information Upfront

Disclosure and Authorization

Background Checks in Canada

Background Checks in India

Background Checks in the U.K.

U.S. Immigration Statistics

According to the Bureau of

Justice Statistics:

12.5% of the current U.S. population consists of immigrants.

In 2009, more than 1.1 million persons became Legal Permanent Residents (LPRs) of the United States

Growing number of workers are from other countries or in the United States on work VISAS.

Large number of U.S. citizens have spent time abroad

Many U.S. firms have operations abroad

LPR Growth Trends by Country

Mexico, Philippines, China, India, The Dominican Republic, Cuba, Canada, El Salvador, Vietnam, United Kingdom, South Korea, Haiti, Columbia, Jamaica, Germany Guatemala, Poland, Japan, Peru, Pakistan

Top 20 countries of LPRs according

to a 2009 report from the

Department of Homeland Security

(DHS)

Risks of Not Screening

All employers have the legal duty to exercise due

diligence in hiring

An employer can be sued for negligence if hiring

someone who they knew, or in the exercise of reasonable

care should have known, was dangerous, unfit, or

unqualified for the particular job and it was foreseeable

that someone could be harmed

The same standard of care applies to employers who hire

individuals who have spent time abroad

Studies have shown that education and employment fraud

for international applicants can run as high as 25%

That means that 1 in 4 applicants you screen may have

false credentials

Assumption of Gov. Screening

Employers should never assume that a background check

was performed when a non-U.S. resident obtains a VISA

Since 9/11, the U.S. government has increased its efforts

on screening foreign visitors thru “watch lists”

Screening for a government VISA does not include lesser

crimes or crimes that may be relevant to employment or

position applied for

Approval of a VISA does not include verification of past

employment or education

Police Certificates: Concerns of authenticity, availability,

differ by country

Resource: http://travel.state.gov/visa/fees/fees_3272.html

http://travel.state.gov/visa/fees/fees_3272.html

Watch Lists

U.S. Terrorist and Debarred Parties Lists

OFAC Specially Designated Nationals

(SDN) & Blocked Persons

http://www.treasury.gov/resource-

center/sanctions/SDN-

List/Pages/default.aspx

OFAC Sanctioned Countries http://www.nsopw.gov/

Department of State Trade Control

(DTC) Debarred Parties List

http://www.pmddtc.state.gov/complia

nce/debar.html

U.S. Bureau of Industry & Security

(formerly BXA)

http://www.bis.doc.gov/

U.S. Bureau of Industry & Security

(BIS) Unverified Entities List

http://www.bis.doc.gov/enforcement/

unverifiedlist/unverified_parties.html

BIS Denied Persons List http://www.bis.doc.gov/dpl/default.sh

tm

BIS Denied Entity List http://www.bis.doc.gov/entities/defaul

t.htm

http://www.nsopw.gov/






http://www.pmddtc.state.gov/compliance/debar.html

http://www.pmddtc.state.gov/compliance/debar.html

http://www.bis.doc.gov/

http://www.bis.doc.gov/enforcement/unverifiedlist/unverified_parties.html

http://www.bis.doc.gov/enforcement/unverifiedlist/unverified_parties.html

http://www.bis.doc.gov/dpl/default.shtm

http://www.bis.doc.gov/dpl/default.shtm

http://www.bis.doc.gov/entities/default.htm

http://www.bis.doc.gov/entities/default.htm

Watch Lists (continued)

U.S. Terrorist and Debarred Parties Lists

FBI Most Wanted Terrorists &

Seeking Information

http://www.fbi.gov/wanted/wanted_te

rrorists AND

http://www.fbi.gov/wanted/terrorinfo

FBI Ten Most Wanted http://www.fbi.gov/wanted/topten

http://www.fbi.gov/wanted/wanted_terrorists

http://www.fbi.gov/wanted/wanted_terrorists

http://www.fbi.gov/wanted/terrorinfo

http://www.fbi.gov/wanted/topten

Watch Lists

International Terrorist and Debarred Parties Lists

HM Treasury Sanctions List (formerly

The Bank of England Sanctions List)

http://www.hm-

treasury.gov.uk/financialsanctions

Office of the Superintendent of

Financial Institution (OSFI) Canadian

Sanctions

http://www.hm-

treasury.gov.uk/financialsanctions

INTERPOL Most Wanted List http://www.interpol.int/Public/Wanted/

Search/Recent.asp

United Nations Consolidated

Sanctions List

http://www.un.org/docs/sc/committees

/1267/tablelist.htm

European Union Terrorism List http://www.un.org/docs/sc/committees

/1267/tablelist.htm

http://www.hm-treasury.gov.uk/financialsanctions






http://www.interpol.int/Public/Wanted/Search/Recent.asp

http://www.interpol.int/Public/Wanted/Search/Recent.asp

http://www.un.org/docs/sc/committees/1267/tablelist.htm




Challenges of Watch Lists

Information is easily accessible, inexpensive and

displays some due diligence

In reality, only a small number of names are included

Subject to typical issues with databases:

completeness, timeliness and accuracy

Name variations, names using non-English alphabet

makes identity difficult

This is not a criminal record search

All data needs to be verified by reporting data source

Most information is name match only

Challenges of International

Background Checks Language and time zone barriers

Name variations and personal identifiers

Means and cost of communication

Locating contact numbers and addresses

Currency exchange rates

Political uncertainty

Legal implications: Privacy and data protection, Safe Harbor, FCRA

Multi-national firms creating a standard approach

Limited access to criminal records or information may not be considered public record

The need to have resources on the ground

Resources: www.privacyinternational.org/index.shtml

http://www.privacyinternational.org/index.shtml

Getting The Right Information

Name Information

First, Last, Middle Name, Alias or Other Names

Mother’s Complete Maiden Name or Father’s Complete Name

Birth Information

Date of Birth mm/dd/yyyy - Other formats – yyyy/mm/dd

Country of Birth, City of Birth

Identifier Information

Passport Information, SIN, SSN

Country Id, Country of Issue

Address History

Complete Address: Plot/Flat/apartment, city, state/province, country,

postal code

Timeframe at this address: mm/yyyy to mm/yyyy

Proof of Address: (may be required) Utility Bill, Gov. Doc, DL#

Getting The Right Information

(continued)

College/Institution

Complete Name of Institution

Campus (i.e., School of Law)

Address: City, State/Province, Country

Student Identifiers

Student ID

Roll or Seat #, Diploma Serial#

Name attended under

Degree Information

Degree Earned, Major, Area of Study, Year Earned

Obtain a copy of degree (front and back – may require serial#)

Employment Information

Complete Name, Address, City, State/Province, Country

Contact Information, Title, Supervisor, Reference Letter

Authorization and Disclosure

Best Practices for International Disclosure

Name, Address, Phone of Consumer Reporting Agency

Disclose the types of checks being conducted

Disclosure of Compliance with Applicable Laws

European Union Data Protection Directive

European Data Protection Privacy Act

Personal Information Protection and Electronic Documents Act

(PIPEDA), Personal Information Protection Act (PIPA)

Obtain Consent and Ability to Obtain a Copy of a Report

European Consumers can be charged no more than $12, must

provide copy within 30 days

Must have the ability to dispute, amend or delete incorrect info

Must have the consumer’s consent and signature

Canadian Background Checks

ID Check thru Credit Bureau

Criminal Records (federal and provincial)

Credit Reports

Motor Vehicle Records

Civil – Provincial Court Searches

Employment Verification

Education Verification

What’s Available in Canada

Privacy Protection in Canada

(PIPEDA Personal Information Protection and Electronic Documents Act

Accountability Identifying Purpose

Consent Limiting Collection

Accuracy Safeguards

Openness Individual Access

Limiting Use Disclosure

Challenging Compliance

Additional Resources

PIPEDA http://www.priv.gc.ca/leg_c/leg_c_p_e.asp

http://www.priv.gc.ca/leg_c/leg_c_p_e.asp

Privacy Protection in Canada

Personal Information Protection Act (PIPA)

An Act Respecting the Protection of Personal Information in the Private

Sector (Quebec)

The Personal Information Protection Act (British Columbia)

The Personal Information Protection Act (Alberta)

The Personal Health Information Protection Act (Ontario)


Provincial Privacy Resource http://www.oipc.bc.ca/

http://www.oipc.bc.ca/

Criminal Records in Canada

CPIC Searches

The Canadian Police Information Centre or “CPIC”

Records maintained by the Royal Canadian Mounted Police (RCMP)

A signed and witnessed consent with clear purpose of employment

Witness must view 2 pieces of Government issued ID and compare the

information from the ID to the form and signature of the applicant. Clear copies

of the ID must accompany the consent form.

Positive identification that a criminal record does or does not exist at the RCMP

can only be confirmed by fingerprint comparison. Results: “A record may

exist” or “A negative response”(No Match)

Delays do exist between a conviction being rendered in court, and the details

being accessible on the RCMP National Repository of Criminal Records (could

be several months English / longer for French).

Information does not include summary offenses (misdemeanors)


RCMP Resource http://www.cpic-cipc.ca

http://www.cpic-cipc.ca/



Criminal Records in Canada

Provincial Searches

Easier to order than CPIC searches

Based on court records in location where searched

Name based search

Criminal case information provided

Includes Indictable (felony) and Summary Offenses (misdemeanor)

Not the recommended process as a stand-alone search

May contain more updated records than CPIC but should not replace

the name based or fingerprint process

Includes summary offenses

Not a national search or comprehensive


Provincial Resource http://www.justicebc.ca/en/cjis/index.html

http://www.justicebc.ca/en/cjis/index.html


Similarities and Challenges

Similar to importance and process as past employment verification in the

United States

Same challenges as the U.S. when contacting past employers and

international complications, limited third-party information exists

3 Key Steps to Performing International Employment Verifications

Obtain as much information as possible from applicant – Don’t over collect

and violate Canadian privacy policies

Conduct verifications in the primary language of that area

Be aware of potential fraud

Be Aware of Fraud


College/Institution




Student Identifiers

Full Name, Date of Birth

Dates of Attendance, Name attended under

Degree Information



Transcripts not typically required

Third Party Sources

AuraData https://www.auradata.com

https://www.auradata.com/

India Background Checks

ID Check

Criminal Records – local police agency check

Tribunal, District, High Court Searches

Serious Offenders and Most Wanted

Civil – High Court Searches




What’s Available in India

Background Screening

Regulations in India

Legal Requirements or Standards

There are no legal requirements or standards to conducting background

checks in India

Reserve Bank of India (RBI) requires dealer banks to conduct background

checks; however, no stated standard

ISO 27001 certificate holders are required to conduct background checks

Privacy rights must be upheld through Article 21 of the Constitution of India

Credit Information Companies (Regulation) Act 2005 – Right to live in liberty

and dignity

Potential National Academic Depository (NAD) under discussion

National Association of Software Services Companies (NASSCOM) looking

into developing standards along with NAPBS-APAC


Article 21 http://www.legalserviceindia.com/articles/art222.htm

Credit Information Companies Regulations Act (2005)

http://rbidocs.rbi.org.in/rdocs/Content/PDFs/69700.pdf

Three Types of Criminal Searches

Identity Information Required

Complete Name, Father’s Name, Permanent Address, Dates at Address,

DOB, Photo (true passport size photo)

Permanent address refers to address where applicant receives official

government documents. Many students/younger citizens use parents

address as permanent address

Obtain a copy of PAN Card: Tax identifier number (10) digits, also proves

address and photo

India police will attempt to provide coverage on dates requested

I- Police Certificate Clearances in India

Permanent residence address is key

Police station with Jurisdiction (circle) over address is searched

Criminal details in another city in India will be sent to police station for

permanent address


II- India Criminal Court Search

Tribunal, District, High Court levels have electronic filings

Targeted court search based on provided address (PAN) or permanent

address

Cases are filed and searched based on city location of filing and not

permanent address

Judicial system case filings are currently available from 1989


III – Criminal and Civil Violations

Serious offenders and most wanted: Internal police search based on

address and additional identifiers across India for serious offenders




United States

Same challenges as the U.S. when contacting past employers, international

complications, lack of third-party databases


Obtain as much information as possible from applicant to verify



Information returned will vary depending upon employer

Many companies will provide written verification


College/Institution




Student Identifiers

Student ID

Roll, Hall or Seat #, Diploma/Certificate Serial#

Name attended under

Degree Information


Obtain a copy of degree (front and back)


Transcripts/Mark-sheets may be required

Obtain a Copy of the Diploma

Diploma Formats

Student Registration Number Degree Serial Number

Name attended under

Student Registration Number

Degree Serial Number

Obtain a Copy of the Diploma

Diploma Formats

Student Registration Number Degree Serial Number

Name attended under

Student Registration #

Serial #

Located on the back

Specific Requirements to Process

No Standard Rule of Thumb for Education Verifications

Certain universities may require a copy of a diploma and also mark-

sheets/transcripts

Few will just authenticate the documents

A bank check could be required from a state or district bank

80% require fees approx. $20.00

Requests via Mail

University may require postmark from India

Timeline and Challenges

Request must accompany required information

Appropriate funds within proper currency

Requests should take 7-10 days

Significant delays may occur if you don’t follow the process

Sample Verification

Education Fraud

Source – 2010 Accredibase Study

Top regions with unaccredited institutions and unaccredited

agencies

Education Fraud

United Kingdom Background

Checks

Address Verification

Criminal Records

Watch Lists

Civil – County Court Judgments


Credit – Credit Safe



What’s Available in the U.K.

EU Approach to Privacy

Relevant Legislation

E.U. approach is to rely on comprehensive legislation that requires creation

of government data protection agencies

Each E.U. member has their own privacy laws as well

E.U. privacy regulations generally prohibit the transfer of personally

identifiable information to countries where the E. U. has not judged there to

be adequate data protection

Privacy Protection in the EU

Relevant Legislation

European Union Data Protection Directive

Data Protection Privacy Act

European Privacy Act


European Commission Data Protection Portal

http://ec.europa.eu/justice_home/fsj/privacy/index_en.htm

EU-SH Safe Harbor

http://www.export.gov/safeharbor/

UK Information Commissioner – Data Protection

http://www.ico.gov.uk/what_we_cover/data_protection.aspx

UK Codes of Practice

http://www.ico.gov.uk/what_we_cover/data_protection/guidance/codes_of_p

ractice.aspx

http://ec.europa.eu/justice_home/fsj/privacy/index_en.htm

http://www.export.gov/safeharbor/

http://www.ico.gov.uk/what_we_cover/data_protection.aspx

http://www.ico.gov.uk/what_we_cover/data_protection/guidance/codes_of_practice.aspx

http://www.ico.gov.uk/what_we_cover/data_protection/guidance/codes_of_practice.aspx

Safe Harbor Framework

Purpose

To bridge the difference with the U.S., a “Safe Harbor” framework was

developed

A U.S. firm can become Safe Harbor certified through a self-certification

process (Department of Commerce website at

https://www.export.gov/safeharbor/

A listing of firms on the Safe Harbor list at:

https://safeharbor.export.gov/list.aspx.

Even if the data transfer is accomplished through Safe Harbor, the employer

still must adhere to other privacy requirements, such as providing proper

notice and obtaining proper consent

https://www.export.gov/safeharbor/

https://safeharbor.export.gov/list.aspx

Safe Harbor

7 Principles

Notice - Individuals must be informed that their data is being collected and about

how it will be used

Choice - Individuals must have the ability to opt out of the collection and forward

transfer of the data to third parties

Onward Transfer - Transfers of data to third parties may only occur to other

organizations that follow adequate data protection principles

Security - Reasonable efforts must be made to prevent loss of collected

information

Data Integrity - Data must be relevant and reliable for the purpose it was

collected for

Access - Individuals must be able to access information held about them, and

correct or delete it if it is inaccurate

Enforcement - There must be effective means of enforcing these rules

Criminal Records Legislation

Rehabilitation of Offenders Act 1974

Applies to England, Scotland and Wales

Applies to individuals that have been convicted and sentenced not more than

2.5 years of prison

If offender is without convictions for a designated period of time from date of

conviction, ex-offender is considered to be rehabilitated

Upon completion of rehabilitation, conviction is considered “Spent”

If prison sentence is over 2.5 years in prison, conviction can never become

“Unspent”

Under ROA terms, a “Spent” conviction is not a proper reason for non-

employment

Applicants don’t need to disclose “Spent” convictions


ROA Act 1974

http://www.justice.gov.uk/downloads/offenders/rehabilitation/rehabilitation-

offenders.pdf

Rehabilitation of Offenders Act

1974

Exceptions

Professionals (medical practitioners, barristers, accountants, vets)

Legal (judges, constables, prison officers and traffic wardens)

Regulated occupations (firearms dealers, directors of insurance companies,

nursing home management and taxi drivers)

Health services (working with children, caring for vulnerable adults)

National security (air traffic controllers, employees of the Crown)

When seeking these types of employment, the applicant is obligated to reveal a

spent conviction, and it is not illegal to refuse or end employment solely on the

grounds of that conviction

Caveat




Criminal Record Searches

Basic Disclosure – £25 – Typically 2 weeks

Most common type of search and available to any employer with applicant’s

consent

Must complete required UK – Basic Disclosure Request Form

Full Name, Alias Other Names, Mother’s Maiden Name, Address History 5

years, Gender Birth Date, Sex, Nationality, National Insurance #, Passport,

Driver’s License #

Additional Information Required

Utility bill (e.g. gas, electricity or telephone) or another document issued by a

government department or local authority which confirms your current

address, and

Passport, Driver license, or birth certificate which confirms date of birth details

CPNI – Centre for the Protection of National Infrastructure

Pre-Employment Screening – A Good Practice Guide

http://www.cpni.gov.uk/documents/publications/2009/2009024-

gpg_pre_employment_screening.pdf

http://www.cpni.gov.uk/documents/publications/2009/2009024-gpg_pre_employment_screening.pdf




(continued) Standard Disclosure £25 – Typically 2 weeks

Standard Disclosures will report both spent and unspent convictions, cautions,

reprimands and warnings held on the Police National Computer

Professionals (medical practitioners, barristers, accountants, vets and

opticians)

Legal (judges, constables, prison officers and traffic wardens)

Regulated occupations (firearms dealers, directors of insurance companies,

nursing home management and taxi drivers)

Health services (working with children, caring for vulnerable adults)

National security (air traffic controllers, employees of the Crown)






government department or local authority (Applicant must reside in the U.K.)



(continued)

Enhanced Disclosure £25 – Typically 2 – 3 weeks

This is the most comprehensive criminal check available and may only be obtained

when the applicant/employee will be involved in the direct care for, training,

supervising or being in sole charge of children or vulnerable adults

The Enhanced Disclosure may also show any information held on local police

records considered relevant to the position being sought



government department or local authority (Applicant must reside in the U.K.)





United States; however, paper based

Most UK and European employers require consent to be provided

Results will typically be returned via a “letter of reference” or “letter of good

standing”


Obtain as much information as possible from applicant to verify



Information returned will vary depending upon employer

Most companies will provide written verification


College/Institution


Campus (i.e, School of Law)


Student Identifiers

Full Name

Date of Birth

Dates of Attendance

Name attended under

Degree Information



Transcripts not typically required

Education Fraud in Europe

Source – 2010 Accredibase Study

Top Ten European countries with unaccredited

institutions and unaccredited agencies

Hillmax College Celebrity

Brian May – Guitarist from the rock group Queen. Brian

actually received his doctorate from the UK at Liverpool John

Moores University

In Conclusion

Weigh the risks of not conducting international

background checks

Develop an internal policy and plan

Have a thorough understanding of country by

country laws and regulations

Be aware of consumer privacy

Secure confidential data at all times

Understanding what you need upfront

Knowing the process will shorten verification

timelines

Never take documentation at face value

Any Questions?

Robert Capwell

Chief Knowledge Officer Employment Background Investigations, Inc. (EBI)

[email protected]

(800) 324-7700

mailto:[email protected]