Screening

It is important for employers to select and hire reliable workers. Screening is one way of reducing the risks. For certain jobs, screening is even required by law.

Screening means that an employer retrieves information about an applicant or employee with a view to assessing their integrity, e.g. by calling an applicant’s references. Screening can be very invasive of the privacy of the applicant or employee concerned. This is why screening is only allowed under certain statutory conditions. The main conditions are that the employer must have a legitimate reason (legitimate interest) and that the screening should be necessary .

Legitimate Interest
An employer’s legitimate interest in a screening usually lies in the fact that the employer should be able to trust his or her (future) personnel to be honest and reliable.

Necessity
This means, among other things, that the employer is unable to achieve his or her goal by other means less invasive than screening.

Other Conditions for Screening
During a screening, an employer processes personal data of an applicant or employee. This means that the employer will have to comply with the BES Personal Data Protection Act.

Is my (future) employer allowed to screen me?

If you apply for a job with an employer, this employer can conduct a screening. Once you are employed, your employer may screen you if this is required by the nature of the job, e.g. when you work with the police. An employer may only screen you if he or she meets certain conditions. For some jobs, screening is required by law.
It is important for employers to hire reliable workers. This is why an employer may decide to screen you. This means that the employer retrieves more detailed information about you.

During a job application, screening typically involves checking the information in your resume. This can be done by calling the references you provided, or by googling you, for example.

Conditions for Screening
The main conditions for being allowed to conduct a screening are:

  • An employer may only retrieve data about you that are relevant to your position or the job you are applying for. For example, if your job involves frequent handling of large sums of money or confidential information, the employer is allowed to retrieve more information about you than in the case of other jobs.
  • Your health cannot, in principle, be the object of screening, unless special job requirements apply, which may require you, for example, to take an eye test.
  • The employer should inform you of the screening. He or she should previously tell you that a screening is taking place, and afterwards what the results are.

Certificate of Good Conduct
For some jobs, an employer is allowed to ask you for a so-called Certificate of Good Conduct. The issuance of a Certificate of Good Conduct is evidence that an investigation carried out by the authorities, having regard to the purpose for which the certificate was requested, has revealed no objections against the person involvedn.

The rules for applying for and issuing a Certificate of Good Conduct on the BES islands have been laid down in the BES Act on Judicial Documentation and Certificates of Good Conduct.

Do I need to undergo another screening each time I am assigned to work in a different organization?

No. In most cases, there is no need for you to undergo another screening every time your employer sends you to work in another organization, unless work in such other organization is subject to different and specific (safety) requirements, in which case you may be screened again.

Posting
Even when you are employed by just one employer, you may do work for other organizations. For example:

  • You work for a cleaning company that sends you off to clean the offices of one or several customers.
  • You are a mechanic employed by a company that sends you off to service other companies’ cars.
  • You are employed by a posting agency that posts you with a different organization each time.

These other organizations may request a screening before you start working for them. However, it would be a serious invasion of your privacy if you had to undergo a new screening for each customer.

One-Time Screening

Therefore, it is recommended for your employer to conduct a one-time screening (unless there is a law that requires otherwise). A customer may then ask your employer what screening methods were applied and whether the screening has revealed any objections.
If you have been issued a Certificate of Good Conduct, the customer may ask you to show it in case of doubt.

What requirements does the Personal Data Protection Act BES provide for screening?

When you screen applicants or employees, you process their personal data. This means that the Personal Data Protection Act BES (PDPA BES) applies. As an employer, it is your responsibility to make sure that the screening meets all requirements of the PDPA BES.

The PDPA BES provides the following minimum requirements for screening:

  • You should have a legitimate interest in the screening.
  • The screening should be necessary. Among other things, this means that you are unable to achieve your goal otherwise or by using a means less invasive than screening.
  • You should meet the obligation of providing information. This means that you should previously tell the applicant or employee in question that you are conducting a screening and afterwards what the results are.
  • You are not allowed to use the information you obtained through the screening for any other purpose.
  • You may only keep the data for as long as necessary for the purpose of the screening.
  • The data should be adequate and relevant and you are not allowed to collect more data than are necessary.
  • You should properly secure the data.

How do I decide as an employer whether screening is necessary?
You inventory the risks involved in the different job groups within your organization. Then, you assess whether you can reduce the risks in a way other than screening.

Inventorying Risks
You make a list of the job requirements and specific risks associated with each job group. For example, jobs that require personnel to work with confidential information involve the risk that this information may be sold or leaked. Financial positions pose a risk of fraud, theft, embezzlement, or bribery.

Reducing Risk
When you are done listing the risks, you should arrange your organization in such a way as to reduce the inventoried risks. As an example, you could provide strict internal controls, or spread powers.

Proper organizational measures may completely eliminate the risks for your organization. If this is not the case, screening of applicants or employees may be necessary.

If somebody consents to a screening, I suppose the screening is allowed?

No. Consent of applicants or employees is not legally valid. Even if they do consent, there are still a number of (statutory) conditions you should meet. Screening of (future) employees cannot be based on the consent of the persons involved. The reason is that the law requires consent to be given freely in order to be legally valid.

Applicants or employees are in a position of dependence on you as their (future) employer. Due to this position of dependence, they may feel pressured into consenting. As a result, their consent will not have been given freelyg.

Am I allowed as an employer to screen someone without telling themMag ik als werkgever iemand screenen zonder dit te vertellen?

No, you are not allowed to do that. You have an obligation to inform the applicant or employee that they are being screened.

Informatie vóór de screening
U moet de betrokken sollicitant of werknemer vooraf laten weten dat er een screening plaatsvindt. Daarbij moet u aangeven waarom een screening noodzakelijk is. Ook moet u laten weten welke gegevens u onderzoekt en waarom deze relevant zijn voor de betreffende functie.

Informatie na de screening
Na afloop van de screening moet u de betreffende sollicitant of werknemer informeren over de uitkomsten van de screening.

What information am I allowed as an employer to retrieve during a screening?

You may only retrieve data that are necessary to minimize the risks involved in a certain job.

A screening should not be the same for all positions in your company or organization. The screening may only be related to the specific risks involved in a specific job. For example, not all cases require checking credit information; probably only certain financial positions do.

Recent Information
The period covered by the screening should be as limited as possible. It will not often be necessary to retrieve data from 20 years ago, because those data are no longer relevant to the current situation.

You should therefore make a proper estimate of which data about the past of the applicant or employee are still necessary to make a proper assessment of that person. Only those data may be part of the screening.

Medical Data
The health of an applicant or employee may not, in principle, be the object of screening, unless special job requirements apply to the position and necessitate a medical examinations.

Criminal Records
The health of an applicant or employee may not, in principle, be the object of screening, unless special job requirements apply to the position and necessitate a medical examination.

Can I as an employer ask for criminal records during a screening?

For some jobs, you may need to be aware of an applicant’s or employee’s criminal record. In most cases, it will be enough to have the person in question apply for a Certificate of Good Conduct.

Certificate of Good Conduct
A Certificate of Good Conduct is a certificate proving that an individual’s past (criminal) behavior is no objection for the purpose for which the certificate is requested.

Screening of Criminal Records
Only when a Certificate of Good Conduct is not enough can you proceed to ask for full criminal records. However, these constitute so-called special personal data, which, in principle, are not allowed to be processed. Only when you can invoke an exception to this rule may you ask for criminal records during a screening. This applies to jobs in which the nature of the work requires additional information.

As an employer, you may be able to invoke the exception provided in Article 22, second paragraph, letter a, of the BES Personal Data Protection Act. This exception involves your processing a person’s criminal data for the purpose of making a decision about that person or providing a performance to that person at that person’s request. In other words, you request the criminal data in order to hire someone or transfer someone to a different job at their own request.

Am I allowed as an employer to outsource a screening?

Yes, you are. For example, you can hire a screening agency to conduct the screening. Keep in mind, however, that you are still responsible for making sure that the screening meets all legal requirements. Before hiring a screening agency, you should therefore comply with all the conditions provided for screening by the BES Personal Data Protection Act.