Pre-employment background checks in Argentina: what may be done?
Pre-employment background checks on applicants have multiple facets and legal implications, raising two different but closely related issues: which pre-employment background checks are allowed and how to avoid potential discrimination claims if a candidate is rejected based on the information collected from the pre-employment background checks.
As a general principle, employers may conduct pre-employment background checks on applicants as long as such pre-employment background checks are not legally prohibited, provided that they preserve the dignity, protection and privacy of the applicant and his or her sensitive data, are reasonable according to the nature of the position to be filled, and require his or her consent where appropriate.
All data accessed through the consultation of public databases may be requested by the employer, without notifying or asking for the employee’s permission. For example, the request of commercial and credit risk reports through any of the companies that provide such service, the consultation of the Central Bank of Argentina’s Database of Debtors and related entities to its database, the Public Registry of Persons and Entities linked to acts of Terrorism and its Financing (RePET), etc.
In the case of criminal records, the certificate of the National Registry of Repeat Offenders can only be requested by the interested party. Companies cannot get it on their own; they can only ask the candidate to apply for it. The request for criminal records should be restricted to candidates applying for positions where they are reasonable, such as, for example, in the banking industry.
As for health data, mandatory medical examinations are only those required by the occupational risk system. Any other would require the candidate’s consent. And some are also prohibited, such as those for HIV (Resolution 270/2015 of the Ministry of Labor, Employment and Social Security, article 4) and Chagas -Massa disease (Law 26,281, article 5).
Regarding pregnancy, the Government of the City of Buenos Aires, through Law 554, has excluded the pregnancy test from pre-employment examinations in the public sector. In addition, some provinces have banned pregnancy tests not only in the public sector but also in the private sector (e.g., San Juan).
Tests for alcohol or substance use could only be done with the consent of the candidate, and provided that the characteristics of the position to be filled justify it (e.g., for bus drivers).
Once the information has been collected through the pre-employment background checks, the employer must be extremely careful, both in the treatment of the data obtained (complying with all applicable obligations according to the Data Protection Law), as well as concerning the decisions made based on such data.
The rejection of an applicant must be grounded on objective criteria, and not on data that may be considered discriminatory against any candidate. Therefore, it is essential to design personnel selection processes also from a legal point of view to minimize potential claims and complaints.
Mario E. Castro Sammartino
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