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  • Legal system, currency, language

    Constitutional and civil law with certain application of case law. Pesos (ARS). Spanish.

     

  • Corporate presence requirements & payroll set-up

    A foreign entity cannot hire employees in Argentina without a local corporate presence.

    Employers must pay social security contributions (23% or 27% on top of salaries, depending on the company's activity and revenues). Employees must contribute 17% of their salaries to the social security system (to be withheld by the employer and subject to certain taxable limits). Income tax is also withheld by the employer when paying employees' salaries (maximum rate 35%, subject to a progressive scale).

    Collective bargaining agreements for certain activities provide payments to be made by the employer and/or the unionized employees to the relevant unions.

  • Pre-hire checks

    Required

    • Pre-hire medical checks are required pursuant to resolutions issued by the Occupational Hazard Superintendence. If an employee does not complete a pre-hire medical check, the employee will be deemed to have begun work in optimal health; therefore, any injuries or diseases which subsequently arise will be deemed to have happened during the employment relationship.
    • Criminal record checks are required for foreign employees to obtain a work visa.

    Permissible

    Where criminal checks are not required for work visa purposes, they are only permissible (and often done in practice) for specific roles (eg, high-level managerial positions). Reference and educational checks are common and permissible, provided applicant consent is previously obtained.

  • Immigration

    Foreigners from non-Mercosur countries must obtain a temporary residence permit that permits them to enter and work in Argentina. Temporary residency is granted for a maximum period of up to 1 year, extendable for periods of equal or shorter terms. After 3 consecutive years as a temporary resident, foreign employees are entitled to apply for permanent residence.

    Citizens of Mercosur countries can apply for temporary Mercosur residence in Argentina without the need to present a work contract to the authorities. Temporary Mercosur residence is granted for 2 years and enables the individual to work and to apply for permanent residence on expiry of the temporary residence.

  • Hiring options

    Employee

    Full-time, part-time, fixed-term, indefinite-term employees or trainees.

    The following factors tend to indicate a labor relationship: availability to work for his/her employer; an employer who directs and subordinates the individual; an employer who instructs the services and duties required and creates the individual's schedule. Courts will also look at the extent to which the worker depends economically on the employer.

    Independent contractor

    Contractors should only be engaged where there is no labor relationship, that is, no direction/subordination or economic dependence.

    Misclassification, that is failure to register an individual as an employee, or submission of an incomplete or defective registration, carries the risk of severe sanctions and fines from the authorities (including amounts owed to social security for unpaid contributions). In addition, steep fines are levied upon statutory severance, including the doubling of the amount of severance owed to a (misclassified) employee.

    Agency worker

    Employers can engage workers through agencies. Agencies must be authorized by the authorities to function as an agency.

    The employer will be jointly and severally liable with the agency for all labor obligations arising from the worker's employment.

  • Employment contracts & policies

    Employment contracts

    There is no general, legal requirement to execute employment contracts in a specific form – meaning that they can be in writing, made orally, etc. unless a specific law or collective convention applies and indicates otherwise. Notwithstanding, employers are advised to enter into a written employment contract.

    Probationary periods

    The maximum permitted duration of a probationary period is 3 months. After the end of the 3 month period, the employee will turn into an indefinite term employee.

    Policies

    The law does not require employers to have specific policies in place. Notwithstanding, there are some policies that are strongly recommended to prevent potential conflict, such as bonus policies.

    Third-party approval

    Third-party approval is not required for employment contracts or any policies.

  • Language requirements

    No statutory language requirements; however, in practice, employment contracts are drafted in Spanish.

  • Minimum employment rights

    Employees entitled to minimum employment rights

    The Employment Contract Law No. 20,744 (LCL) governs the minimum employment rights in Argentina.

    Pursuant to Article 3º of the LCL, the law governs everything related to the validity, rights and obligations of the parties, provided the employment contract is performed in Argentina, even if the contract was entered into abroad.

    The LCL applies to "workers" which covers not only employees working under an employment contract, but also other individuals who personally perform "work" or provide services for the employer.

    For this purpose, "work" should be understood as any legitimate activity that is provided in favor of someone who has the power to direct that work, through the payment of remuneration for those activities and/or services rendered.

    The main factors that will tend to indicate that an individual is an employee rather than a worker or self-employed worker, are:

    • The employee must be available to work for his/her employer
    • The employer will direct and subordinate the employee, appoint the services and duties required and order the employee to comply with a schedule

    Courts will also weigh the extent to which the worker depends economically on the income obtained from the alleged employer.

    Working hours

    The general maximum number of hours is 8 hours per day or 48 hours per week for all employed workers in public or private enterprises. Each extra hour worked above these limits is deemed to be overtime.

    Notwithstanding the foregoing, Article No. 3 of Law No. 11,544, in its subsections a), b) and c) regulates exceptions to the abovementioned maximum limitation on working hours. The limitations do not apply to employees performing duties under the form of a "job team," that is, working in a special coordinating rotation system, nor to employees performing duties in high-level positions (main managers, directors etc.).

    Overtime

    Employees in Argentina are allowed to perform overtime. Overtime will be only compulsory in cases of danger or accidents or imminent force majeure, or by exceptional demands of the national economy or the company (Article No. 203 of the LCL).

    Overtime must be paid with a surcharge of 50%, calculated using the employee's usual salary if the overtime hours were worked during business days, and 100% on Saturday after 1pm, Sunday or holidays. In no event may employees work overtime of more than, 3 hours per day, 30 hours per month or 200 hours per calendar year.

    Wages

    The national minimum wage (NMW) is updated regularly by the National Council of Employment dependent of the Ministry of Production and Labor. The NMW rate as of December 2018 is AR$11,300.

    Most CBAs also provide for a specific minimum wage applicable to employees subject to the CBA.

    Vacation

    Employees with less than 5 years seniority are entitled to 14 calendar days after 6 months of work. This increases to 21 calendar days for employees with between 5 to 10 years of seniority; 28 days for employees with between 10 to 20 years of seniority, and 35 days for employees with more than 20 years of seniority. For employees with less than 6 months of service, employers must grant 1 day of vacation per worked month. Companies should grant vacation to their employees between October 1 to April 30 of the following year.

    Sick leave & pay

    Sick/accident leave of up to 3 months per year must be provided to employees with less than 5 years of seniority, while 6 months must be granted to employees with seniority of 5 years or longer. For employees with "family dependents" (generally understood to be the immediate family that economically depends on the employee’s wage and labor benefits), these periods are doubled, to 6 and 12 months, respectively.

    Maternity/parental leave & pay

    Pregnant employees may take leave of 45 days prior to giving birth and up to 45 days after giving birth. However, the employee may choose to reduce the leave prior to giving birth, but it may not be less than 30 days, and add those days to the maternity leave period after the birth of the child. In the event of premature birth, the period of the leave that has not been enjoyed before the birth will be added to the leave period after the childbirth. Further, the employee is entitled to earn her gross remuneration (without any withholding contributions made to the social security system), during maternity leave. The ANSES (as defined below) pays the remuneration of employees during maternity leave.

    Fathers are entitled to paid leave of 2 consecutive days for the birth of his child. There is no general regulation providing other parental leave after the birth of a child. 

  • Discrimination

    The law prohibits discriminatory acts or omissions based on race, religion, nationality, ideology, political or trade union opinion, sex, economic position, social condition or physical characteristics.

    In addition, Argentina has ratified international antidiscrimination conventions, such as the Convention of Belem do Pará and the Convention on the Elimination of All Forms of Discrimination against Women.

  • Benefits & pensions

    The Social Security National Administration (Administración Nacional de la Seguridad Social, hereinafter ANSES) is the authority in charge of the administration of the social security system in Argentina, called Sistema Integrado de Jubilaciones y Pensiones (SIJP). Employers and employees are required to make contributions to the SIJP which provides for old age pension and disability benefits.

    To qualify for a statefunded pension distribution, male employees must be 65 years old, while female employees must be 60 years old. In both cases, in order to qualify for pension the employee must have contributed to the SIJP for a minimum of 30 years.

    Employers do not have a legal obligation to provide a private pension scheme for employees, as the employees are entitled to state pensions.

  • Data privacy

    The Data Privacy Law No. 24,766 sets limits to the type of personal data that may be collected by prohibiting the collection of sensitive personal data, such as data that is related to political or religious opinions, and regulates the collection, use, processing and transfer of personal data.

    Employers are allowed to monitor employee's work devices, provided the employee is duly notified in advance, and personal information is safeguarded and not disclosed.

  • Rules in transactions/business transfers

    Where there is an asset transfer that qualifies as a business transfer, all obligations arising from the employment contracts that the transferor has executed with its employees will be taken on by the transferee after the transfer. Employment contracts will continue with the transferee and the employees will retain their seniority with the transferor and the rights arising from it. Therefore, on the execution of the transfer, all employees are automatically transferred to the transferee, after their written consent has been obtained.

    Although in practice both internal consultations and collective consultation with trade unions are held before a business transfer takes place, the transferor and the transferee are not required by law to inform or consult employees on a business transfer. However, in order to perform the transfer of staff, the employee’s written consent must be given prior to the transfer. In the absence of this consent, the employee may terminate the employment, with the right to compensation.

    The transferor and the transferee will be jointly and severally liable for any dismissals that arise due to the transfer.

  • Employee representation

    Argentina is a highly unionized country with approximately 3,100 active trade unions with considerable political power. There are unions in nearly all sectors or industries.

    A trade union must be recognized by the Ministry of Production and Labor. Only recognized and authorized unions can enter into a CBA. Employers cannot recognize an unauthorized union voluntarily, not even for collective bargaining purposes.

    The National Constitution sets out collective labor rights in its Article No. 14 (bis), guaranteeing unions the right to collectively bargain and the right to strike.

    CBAs are very common in Argentina. There are different types of CBAs depending on the territory in which they are going to be enforceable. Some CBAs only govern employees within one specific company, whereas other CBAs govern employees performing certain activities in a geographical region or industry.

  • Termination

    Grounds

    Cause is not required for termination of employment; however, it is required to avoid payment of statutory severance. There is no exhaustive and/or exemplary list of behaviors that constitute cause for dismissal; therefore, whether a dismissal is with or without cause will depend on judicial judgment on a case by case basis. 

    Who is subject to termination laws?

    All employees.

    Prohibited or restricted terminations

    Public employees and union delegates cannot be dismissed without cause and without complying with the statutory procedure for these terminations. All other employees can be dismissed with payment of statutory severance, which will differ based on the case (maternity, illness, etc.)

    Pregnant employees are protected from dismissal. If a pregnant employee is dismissed within the period of 7-1/2 months before or after the date of childbirth, the pregnancy will be considered to be the cause of the dismissal, entitling the employee compensation for the discrimination equivalent to their annual salary, in addition to the applicable severance payment.

    Further, if a dismissal occurs 3 months before the marriage of an employee, or 6 months after it, the dismissed employee will be entitled to a special compensation.

    In order to dismiss employees on sick leave, employers must pay a special severance (full severance payment applicable for dismissal without cause, plus the salary which would be payable for the entire period the illness would be expected to last, according to medical opinion).

    Third-party approval for termination/termination documents

    Under Decree No. 1043/18 (effective as of November 14, 2018), employers wishing to dismiss indefinite term employees without cause must notify the Ministry of Production and Labor at least 10 business days before the decision goes into effect. This Decree is effective through March 31, 2019.

    As this decree was issued recently, there is no administrative or judicial case law interpreting the Decree.

    Mass layoff rules

    Prior to a mass dismissal, an employer must provide notice to the respective trade union that regulates the employer's industry. Collective consultation may be required depending on employee headcount.

    Prior to executing or communicating dismissals or suspensions due to force majeure, economic or technological causes that affects more than:

    • 15% of the employees where total headcount is less than 400
    • 10% of the employees where total headcount is between 400 and 1,000 and
    • 5% of the employees where total headcount is greater than 1,000

    Employers must comply with the Preventive Procedure of Companies Crisis (PPC) before the Ministry of Production and Labor. During this procedure, the company will engage in negotiation with the respective union acting on behalf of their members. The aim of this procedure is to avoid business shutdowns or bankruptcy. After the company files the request at the Ministry of Production and Labor, the Ministry will forward the claim within 2 business days of the filing to the other party for its response. After a response is made, a settlement hearing will be scheduled within the next 5 business days. If a settlement is not reached, the Ministry will open a "negotiating period" that must not extend beyond 10 business days. If the parties still do not reach to an agreement within that period, the PPC process will conclude. Notwithstanding this, in practice, this procedure normally takes longer than the law sets out.

    Notice

    In order to proceed with termination, employers must give notice to employees before the dismissal. 

    The term of this notice will depend on the seniority of employees:

    • During their probationary period, notice must be given to employees 15 days before termination
    • In order to dismiss employees who have completed the probationary period but who have less than 5 years of seniority, notice must be given 1 month prior to the dismissal and
    • Employees with more than 5 years' seniority must receive 2 months' notice before their dismissal

    Statutory right to pay in lieu of notice or garden leave

    Employers are permitted to pay in lieu of notice. Current legislation does not regulate nor prohibit garden leave.

    Severance

    An employee who is dismissed without reasonable cause is entitled to statutory severance of 1 month's salary for each year of service, or period longer than 3 months. This amount is calculated using the employee's highest monthly, regular compensation received in the last 12 months of work. This baseline cannot be more than 3 times the "monthly payment," which is the average of all compensation set out in the applicable CBA at the time of the dismissal (this average is periodically published). The Ministry of Production and Labor governs the updating of this average for every authorized trade union.  

    If the employee is not subject to a CBA (typically, senior employees), the limits applicable to the activity in which he/she performs duties will apply. In no case will the amount of the compensation payable be less than 1 month of real salary.

    Currently, in the Vizotti case, the Supreme Court of Justice has raised the basis for calculating compensation subject to a limit, establishing that it will be 67% of the employee's monthly and usual compensation, the amount to be multiplied by the years of service of the employee, based on constitutional reasons and in cases where the application of the legal limit imposes a reduction to the severance payment of more than 33%.

    This severance payment may be reduced or increased in other types of termination (eg, force majeure and lack or reduction of work; death of the employee; employer's bankruptcy; employee's retirement; employee's illness; employee's pregnancy; etc.)

  • Post-termination restraints

    Non-compete, customer non-solicitation and employee non-solicitation clauses are often used, especially when the employer and employee negotiate the terms and conditions of the termination of the employment.

    Restrictive covenants are capable of being enforced post-employment, provided the employee receives compensation for the restrictions. Therefore, consideration is required for valid restrictive covenants. The amount must be fair and in accordance with the salary of the employee, his/her position in the company, the agreements that the company intends to impose and the extent (period and territory) of the restrictive covenant.

    The law does not specifically regulate restrictive covenants. However, most restrictive periods range between 2 years to 5 years. However, under certain circumstances the court has enforced a 10 year post-termination restraint period, based on the business and the amount of consideration paid to the employee.

    Where an employee is in breach of an agreement, the employer can file a claim against the employee in court requesting compensation for damages. The complaint may include injunctive relief to stop the violation immediately. Alternatively, courts may declare the covenant null and void if it has been drafted too widely.

  • Waivers

    Pursuant to the LCL, any executed agreement that suppresses or reduces rights granted by the LCL, labor laws related to specific industries, collective agreements or individual employment contracts, either at the time of their agreement or execution, or the exercise of the rights arising from its termination, shall be null and void.

  • Remedies

    Discrimination

    Compensation is available as a remedy for discrimination or harassment. In case the event of a complaint based on harassment, the employee can file a claim requesting the payment of the statutory severance payment applicable to dismissals without cause and an additional amount for the pain and/or emotional distress caused by the harassment.

    Employers are liable for the acts of their employees. Therefore, the employer and the harasser will be declared jointly and severally liable for the payment of any compensation granted to the victim.

    Unfair dismissal

    Employees may challenge a dismissal without cause within 2 years of the dismissal and seek payment of statutory severance, plus interest and court fees. The complaint must be filed before the labor courts.

    Failure to inform & consult

    Not applicable for terminations as there are no consultation obligations.

  • Criminal sanctions

    Breaches of labor law do not entail a criminal breach or sanction unless such a breach or offense is specifically regulated by the National Criminal Code as a crime. In that case, criminal sanctions will be applied for the breach of criminal law and not for the breach of labor law.

  • Key contacts
    Osvaldo Jofre
    Osvaldo Jofre
    Cordova Francos [email protected]

Pre-hire checks

Argentina

Required

  • Pre-hire medical checks are required pursuant to resolutions issued by the Occupational Hazard Superintendence. If an employee does not complete a pre-hire medical check, the employee will be deemed to have begun work in optimal health; therefore, any injuries or diseases which subsequently arise will be deemed to have happened during the employment relationship.
  • Criminal record checks are required for foreign employees to obtain a work visa.

Permissible

Where criminal checks are not required for work visa purposes, they are only permissible (and often done in practice) for specific roles (eg, high-level managerial positions). Reference and educational checks are common and permissible, provided applicant consent is previously obtained.

Australia

Required

Immigration compliance.

Permissible

Permitted with applicant's consent and subject to relevant discrimination laws. Offers of employment may be subject to criminal record checks or medical examination (if necessary to determine fitness for a particular job).

Austria

Required

Immigration compliance.

Permissible

Criminal and credit reference checks are only permissible for specific roles (eg, certain finance positions) and subject to proportionality requirements. Reference and education checks are common and permissible with applicant consent.

Bahrain

Required

Foreign employees must receive prior approval from the LMRA and Ministry of Interior before they can be hired on local employment contracts. The level of background checking and screening carried out by the Bahrain authorities varies according to the nationality and proposed position of an individual.

Permissible

Generally, employers in Bahrain are not able to obtain the same level of information from background checks as they can in other jurisdictions and, in most cases, the employees themselves will be required to provide this information. As such, a Certificate of Good Conduct from the Criminal Investigation Directorate is the most commonly requested document.

Belgium

Required

Immigration compliance (work permit and/or residence permit).

Permissible

Criminal checks are only permissible under exceptional circumstances for specific roles and subject to proportionality requirements. Reference and education checks are common and permissible with applicant consent.

Brazil

Required

Immigration compliance. Valid ID. Pre-hire medical examination.

Permissible

Background checks for education, prior employment and basic personal information such as proof of identity and residential address are accepted in certain circumstances. Criminal checks are limited to certain circumstances.

Canada

Required

All employers should verify that individual employees are legally entitled to work in Canada by obtaining the employee's Social Insurance Number (SIN) but only after a conditional offer of employment is made. Certain employers may also require criminal records checks through a Canadian Police Information Check (CPIC). In some industries, a more comprehensive check may be required by law (eg, persons who work with vulnerable individuals such as children). 

Where a criminal record check is required by the employer, the prospective employee may have grounds to claim discrimination if a decision not to hire is based on:

  • A conviction of a provincial offense revealed by the check
  • A criminal offense for which a pardon has been granted
  • A criminal conviction unrelated to the individual's employment

Criminal records checks should not be done without the prospective employee's consent and, in any event, it is recommended that a conditional offer of employment be made before a criminal record check is performed. 

Permissible

Verifying references, past employment and education is common and permissible, provided that:

  • The applicant has consented and
  • The employer conducts the verification in a consistent and non-discriminatory manner

Caution must be exercised in undertaking more detailed background checks to ensure that the scope of the detailed background check is not excessive and that proper consent has been obtained in accordance with applicable privacy laws. 

Credit checks are generally permissible when the candidate's credit history is relevant to the position (eg, positions which involve handling money or involve financial decision making). Credit checks must be conducted in accordance with applicable consumer protection legislation, which requires that:

  • Consent be obtained from the individual
  • A proper process be followed when the credit check is undertaken

It is recommended that a conditional offer of employment be made before a credit check is performed.

Chile

Required

None. However, immigration check recommended to ensure the employee has the right to work legally in Chile.

Permissible

In general, employers are permitted to check education and prior employment records. Employers can check financial history, health, drug/alcohol usage, and criminal records in very limited circumstances when such information is directly relevant to the position for which the candidate is considered. No background checks can be based on any status protected by the Chilean anti-discrimination statute, including checks based on union membership or political affiliation.

China

Required

Immigration compliance.

Permissible

Reference and education checks are common, even without applicant consent. There is no restriction on criminal record checks.

Colombia

Required

Immigration compliance.

Permissible

Pre-employment background checks are permitted and it is very common to use specialized companies for these services (ie, third party validations of background checks).

Background checks could include educational history and professional qualifications, employment history, consumer credit checks, civil litigation, criminal records, OFAC/Global Sanctions Lists, driver's license check, and passport/ID validation, among others.

On the initiation of the recruitment process, the applicant must grant express written consent to conduct the background checks.

Under Colombian law, there are few restrictions on an employer's right to request substantiating documents and to confirm the information provided by the applicant (for example, regarding health conditions, pregnancy, drug use, family situations and political tendency).

Czech Republic

Required

Immigration compliance. Entry health check. Where required by law, criminal records check or information about pregnancy (eg, where certain work cannot be performed by a pregnant employee).

Permissible

Reference and education checks are common and permissible. Criminal records and credit reference checks may be requested if justified by the specific nature of the work performed and subject to the proportionality principle. Subject to the same conditions, the employer may also request information concerning pregnancy, financial and family affairs of the applicant. 

Denmark

Required

Employers are responsible for ensuring that all employees have a valid residence and work permit when employing third country citizens. For any occupations involving work with children under the age of 15, an employer must ask for a record that specifies whether the employee is fit to work with children. The employee must give consent before collecting the record.

Permissible

An employer may ask a potential employee to produce a copy of their criminal record if this is considered necessary and proportionate in relation to the job. Information on a potential employee's health may be requested only if this is of significant importance to the ability to perform the job in question. With regard to educational background and activities, data from the application may, as a rule, be verified by the employer. It is common in Denmark to issue job references. Applicants may be asked to provide contact data of former employers. Credit checks are allowed for employees in special fiduciary positions, and if there is a legitimate purpose for the check.

Finland

Required

Under the Employer Sanction Directive and the Finnish Employment Contract Act, employers are required to ensure that non-European Economic Area nationals comply with residency/immigration requirements or face fines for non-compliance. Criminal records must be checked when working with children.

Permissible

For tasks other than working with children, credit history and criminal records may be checked only in situations where the law so requires and by following the procedure stipulated in law. Medical checks may be used to check employees' ability to work. Reference and education checks are common and carried out with the applicant's consent.

France

Required

If the individual to be employed is a foreigner, the employer is required to check the validity of his or her work permit. As of January 2017, with some exceptions, employers must set up a preventive and informative medical assessment to take place within 3 months of the commencement of employment, unless the employee has been subject to such visit during the previous 5 years.

Permissible

Pre-hire checks may be permissible subject to data privacy laws and if the information is related to the job position. Reference checks are permissible, provided the applicant is informed. A criminal record check is permissible for specific job positions only (eg, those involving the handling of cash).

Germany

Required

Immigration compliance. For certain employment positions (eg, public services, education sector, medical sector, security services), statement of good standing (Führungszeugnis) from the Federal Central Register (Bundeszentralregister).

Permissible

Requiring a credit reference check or a statement of good standing is only permissible for roles justifying interest in such information and subject to proportionality requirements. Reference and education checks are common and permissible with applicant consent.

Hong Kong

Required

Immigration compliance.

Permissible

Any data collected as a result of pre-hire checks must be necessary and not excessive. In order to comply with the Personal Data (Privacy) Ordinance (PD(P)O), candidates are to be expressly informed of the collection, use and disclosure of any personal data in relation to them by their employer (or prospective employer). Asking a candidate to sign a Personal Information Collection Statement will assist an employer in complying with those obligations. A candidate can be asked to have a medical examination, but  only after the employer has made him or her a conditional offer of employment. If criminal checks are carried out, an employer must be careful not to dismiss, exclude or display prejudice against the candidate on the basis of any spent conviction (that is, where a person was previously convicted of an offense for which he or she was not sentenced to imprisonment of more than 3 months or a fine of more than HKD 10,000, and the person has not been convicted of any other offense for at least 3 years).

Hungary

Required

Immigration compliance is required. Criminal records are also checked in relation to certain occupations, such as judges, attorneys, public servants, auditors.

Permissible

Apart from the above, a check of criminal records is only allowed if it provides important information with respect to the given position or work to be carried out.

Further checks (eg, education, reference) are also permitted, but may only be carried out if aiming to obtain important information for the purposes of entering into the employment.

India

Required

There is no statutory requirement on an employer to carry out pre-hire background checks (except for employment in certain sectors such as mining, where medical checks are mandatory prior to employment). However, the visa stamp/sticker in the employee’s passport will include the name of the employer, and the employer will be required to provide an undertaking to the Foreigners Regional Registration Office (FRRO) on behalf of the employee to register the employee with the FRRO. Therefore, it is advisable for the employer to undertake a basic immigration check at a minimum. Also, taking into consideration that termination of employment is not simple in India, it is  common for employers to verify the professional and educational qualifications of the candidate.  

Permissible

Background checks for applicants can be conducted as long as they comply with the fundamental right to privacy, which means that applicant/employee consent should be obtained. Establishments usually have a pre-hire background check policy in place for new hires. Background screening is generally done for education qualification verification, previous employment status, address verification, criminal background verification, reference verification, and applicable database verification.

Indonesia

Required

Indonesian legislation is silent on pre-hire checks. Thus, there are no requirements or prohibitions on background checks on applicants.

Permissible

Yes.

Ireland

Required

Immigration compliance. Criminal record checks only for those who work with children, vulnerable adults and in security.

Permissible

Reference and education checks are common and permissible with applicant consent.

Israel

Required

Immigration compliance.

Permissible

Reference and education checks are common and permissible with applicant consent. Other types of checks are subject to restrictions (including restrictions on criminal records and credit checks) and must be directly related to the position.

Italy

Required

Immigration compliance.

Permissible

Criminal and credit reference checks are only permissible for specific roles (eg, certain finance positions) and subject to proportionality requirements. Reference and education checks are common and permissible with applicant consent.

Japan

Required

Generally not required.

Permissible

Criminal background checks are not prohibited, but are discouraged by the labor authorities. There should be a strong need to justify such checks. In addition, conducting a criminal background check in Japan is difficult because records are not publicly available. Reference and education checks can be done with consent, but third parties receiving requests do not always cooperate. Some employers require a health check at hiring, but employers should not conduct HIV testing and gene diagnosis unless there is employee consent and a strong and legitimate reason to do so.

Kenya

Required

  • Education qualifications checks and referee follow up for all hires
  • Criminal record clearence checks
  • A locally-registered entity to support the application
  • For an entity that already has foreign expats, whether the ratio of 1:3-7 in favour of Kenyans is being loosely observed

Permissible

The Department of Immigration Services, in conjunction with both the local and international security agencies, are permitted to conduct background checks on all applicants.

Kuwait

Required

Foreign employees must receive prior approval from the Ministry of Social Affairs and Labor Affairs (MOSAL) and immigration authorities before they can be hired on local employment contracts. The level of background checking and screening carried out by the Kuwait authorities varies according to the nationality of the individual.

Permissible

Generally, employers in Kuwait are not able to obtain the same level of information from background checks as they can in other jurisdictions and, in most cases, the employees themselves will be required to provide this information.

Luxembourg

Required

Immigration compliance.

Medical check: When recruiting, an employer must ensure that the employee undergoes a medical check with a practitioner of the occupational health service to which the employer is affiliated. The practitioner will decide if the employee's health allows him or her to fill the position in question. This medical check is compulsory, irrespective of the nature of the work (ie, office, industrial or construction work, etc.). In certain cases, the employer must also organize regular medical examinations during employment.

Permissible

Reference and education checks are common and permissible with the applicant's consent provided that they are compliant with data protection and privacy provisions, and linked to the nature of the position. For the purpose of human resources management and recruitment, the employer may request that any applicant provide a criminal record. In all cases, if the employer makes the decision not to hire the job applicant, the criminal record will have to be immediately destroyed. If the job applicant is hired, the employer will only be entitled to retain the criminal records for one month.

Malaysia

Required

Immigration compliance for foreign nationals.

Permissible

Pre-employment background checks are not regulated, and the practice differs among industries. Employers should obtain the individual's consent if the pre-hire checks require accessing, collecting or processing the individual's personal data to ensure compliance with the Personal Data Protection Act 2010.

Mexico

Required

Immigration compliance.

Permissible

Under Mexican law, there are few restrictions on an employer's right to request substantiating documents and confirm the information provided by the applicant regarding his or her education, health condition, finances, drug use, family situation and criminal background. Employers have broad flexibility with regard to the questions that may be asked during the application process.

Criminal background checks are permissible; however, only the employees in question themselves can request such information from the corresponding authority. Credit checks are not common in Mexico, since there is no specific procedure established by law for employers to obtain credit information. Reference and education checks are common and permissible with applicant consent.

Morocco

Required

Immigration compliance. For certain limited occupations (eg, solicitors, chartered accountants), a criminal records check is required.

Permissible

Identity and personal information checks. Education checks. Prior employment checks.

Mozambique

Required

Immigration compliance for foreign employees. Foreign employees must have a valid work permit and a residence permit to work in Mozambique. In general, pre-hire checks are not mandatory but in some areas of activity (eg, mining, oil and gas) prior medical examinations are required. 

Permissible

Reference and education checks are permissible, and candidates may be requested to provide a certificate of criminal records.

Myanmar

Required

None.

Permissible

Employers may request their employees to provide information relating to the execution of an employment contract, such as full name, age, gender, residence address, educational level, occupational skills, and health conditions. Employers may also request a recommendation letter from a local administration office or a previous employer and may request a criminal background check from the relevant township police station when an employee submits an application for employment.

Netherlands

Required

Immigration compliance. For certain limited provisions (eg, judges, lawyers, advocates), an applicant has to provide a recent copy proving that he or she has no criminal record that should prevent him or her from performing his or her duty (verklaring omtrent gedrag).

Permissible

Reference checks are common and permissible with applicant's consent. Other checks are only permissible in limited situations.

New Zealand

Permissible. Required in some industries, eg childcare.

Immigration compliance.

Permissible

Criminal, reference and credit reference checks are permissible but are subject to the candidate's consent.

Nigeria

Required

Immigration compliance.

Medical examination for manual and clerical workers.

Permissible

Background checks for education, prior employment and basic personal information such as proof of identity and residential address are accepted in Nigeria. In practice, the prospective employee’s consent is sought before such checks are carried out.

Norway

Required

Immigration compliance. For certain occupations (eg, lawyers, accountants) a certificate of good conduct is required.

Permissible

Criminal check is only permissible for specific occupations where there is legal basis for obtaining a certificate of good conduct.

Reference checks and education checks are permissible with the applicant's consent.

Oman

Required

Foreign employees must receive prior approval from the Ministry of Manpower and immigration authorities before they can be hired on local employment contracts. The level of background checking and screening carried out by the authorities varies according to the nationality of an individual.

Permissible

Generally, employers in Oman are not able to obtain the same level of information from background checks as they can in other jurisdictions, and in most cases, the employees themselves will be required to provide this information.

Philippines

Required

There are no regulatory requirements for pre-hire, subject to compliance with immigration laws for employment of foreign expatriates.

Permissible

Philippine labor law leaves it to the management prerogative of employers to provide for pre-hire checks, including but not limited to: a National Statistics Office (NSO)-issued Birth Certificate, a National Bureau of Investigation (NBI) Clearance, a transcript of records for educational verification and previous employer references.

Poland

Required

Immigration compliance: requirement to obtain a work permit for foreigners originating from non-EU and non-European Economic Area (EEA) countries. A statutory list of so-called regulated activities to be performed only by persons holding specific licenses or possessing certain types of education and professional experience. Initial medical examinations to confirm that there are no health reasons barring the person's employment in a certain position – although there are certain exceptions where a medical certificate was issued during a period of previous employment in the same position.

Permissible

Certain limited personal data can be requested from the candidate, as specified by the Polish Labor Code. Additional information (eg, information on criminal convictions) can be requested only if the obligation to provide this information is provided for in separate statutory provisions.

Portugal

Required

Immigration compliance. For certain roles (eg, security guards, employees who work with children), a certificate of criminal record check. Pre-hire medical examinations.

Permissible

Reference and education checks are permissible.

The employer may not request a candidate for employment to provide information related to his/her private life (including criminal record checks), health condition or pregnancy, unless such information is strictly necessary and relevant to evaluate the person's aptitude for the performance of the employment, or when the nature of the professional activity justifies such request, and the reasons for the request are provided, in writing, to the candidate.

Tests and medical examinations (other than the legally required pre-hire medical examinations), including drug tests, may only be requested if aimed at the protection and safety of the employee or third parties, or when the nature of the activity so requires. The employer must inform the employee in writing of the grounds for the request.

Requesting that an employee or applicant submit to a pregnancy test or medical examination is strictly forbidden.

Qatar

Required

Foreign employees must receive prior approval from the Ministry of Labor and Ministry of Interior before they can be hired on local employment contracts. The level of background checking and screening carried out by the Qatar authorities varies on a number of factors including the nationality of an individual and whether the individual is a local hire or recruited from abroad. Insofar as we are aware, local nationals are not subject to the same level of checks as foreign nationals recruited by a Qatari entity from abroad.

In some cases, (depending on the nature of the role) as part of the work permit/residence visa process, employees will be required to provide an attested copy of their degree/high school certificates to the Ministry of Labor.

Permissible

Generally, employers in Qatar are not able to obtain the same level of information from background checks as they can in other jurisdictions and, in most cases, the employees themselves will be required to provide this information. For example:

  • Criminal record: In Qatar, police checks or Certificates of Good Conduct can only be obtained by the individual from the Criminal Evidences and Information Department (CEID). To obtain the Good Conduct Certificate, the individual, if a foreign national, may also be required to obtain police clearance from his home country and provide an attested copy of this policy clearance to the CEID.
  • Employment: There is provision in the Labor Law for employers to provide all employees with a certificate of service if requested, so candidates should be asked to verify their employment history.

Romania

Required

A request for a medical certificate/check can only be made for the purpose of ascertaining the applicant's ability to perform the work in question, and the cost of the medical check must be met by the employer. Immigration compliance also needs to be considered, where relevant.

Permissible

Reference checks with respect to an applicant's length of employment and work performed for former employers are common and permissible, although the applicant should be informed in advance. Processing any data regarding criminal records is generally prohibited.

Russia

Required

Immigration compliance, military compliance (with regard to a person's responsibility to serve in the military). In certain situations, criminal record check.

Permissible

Criminal and credit reference checks are only permissible for specific roles (eg, certain finance positions, educational institutions) and subject to proportionality requirements. Reference and education checks are common and permissible with the applicant's consent.

Saudi Arabia

Required

Immigration compliance for all non-GCC employees.

Permissible

Criminal and credit reference checks are only permissible for specific roles (eg, certain finance positions) and are subject to proportionality requirements. Reference and education checks are common and permissible with applicant consent.

Singapore

Required

Immigration checks, to ensure that the relevant work pass required is obtained for the prospective candidate.

Permissible

Offers of employment are often made subject to:

  • The prospective candidate having obtained the relevant work pass
  • Where necessary, the obtaining of satisfactory references
  • When appropriate, criminal record checks

Employers may also require the prospective candidate to undergo a medical examination and produce evidence of qualifications.

Pre-hiring checks need to comply with Singapore's Personal Data Protection Act 2012 (PDPA). Generally, employers are required to at least notify applicants of the purposes for which their personal data is being used in connection with the management and termination of employment, and obtain their consent where collecting, using or disclosing their personal data. However, relevant exceptions to the PDPA notification and consent requirements include where the information is publicly available, and where the information collected is for evaluative purposes (eg, for the purposes of evaluating employee suitability for the role) or for investigative purposes.

Slovak Republic

Required

Immigration compliance. Criminal record checks in cases in which integrity is required based on the nature of the work or pursuant to special regulations (eg, public services).

The employer is obliged to provide an assessment, based on the results of a preventative work-related medical examination, of the medical fitness for work of a juvenile employee. The juvenile employee is obliged to undergo this medical examination.

Permissible

An employer may request that a person who was previously employed submit references and a certificate of employment. For an individual applying for his or her first employment, an employer may request only information relevant to the work to be carried out.

Reference and education checks are common and permissible with the applicant's consent.

South Africa

Required

Immigration compliance.

Permissible

It is permissible to carry out background checks. A criminal record check may only be carried out if the candidate provides a copy of his/her fingerprints. Once the Protection of Personal Information Act, 2013 (POPIA) comes into effect, consent would be required to conduct a criminal record check.

The National Credit Act, 2005 prohibits the release of credit reports "unless directed by the instructions of the consumer." Furthermore, the purposes for which credit reports may be used are limited in that they should only be used for considering a candidate for employment in a position that requires trust and honesty and entails the handling of cash or finances. It also provides that the consent of the consumer should be obtained prior to requesting the credit report for this purpose.

A medical check would require the consent of the individual.

While consent is not required to conduct other checks such as a check on qualifications, references and employment history, it is advisable to obtain consent. Furthermore, once POPIA is in effect the applicant would need to be notified about the background checks that will be carried out. 

South Korea

Required

Immigration checks are generally required.

Permissible

Under the Personal Information Protection Act (PIPA), to conduct background checks that go beyond the scope generally required to enter into an employment agreement, consent must be obtained from the applicant. Separate consent must be obtained if sensitive information such as an employee's health information or criminal records are to be checked.

Spain

Required

Immigration compliance. For certain roles (eg, security guards), the employee must provide the potential employer with a certificate proving that he or she does not have a criminal record. These certificates cannot be stored by the employer nor transferred to any other entity.

Permissible

Reference and education checks are permissible with the applicant's consent only. Most companies and institutions prefer to deliver the information directly to the applicant so that he or she can supply it to the potential new employer directly and personally.

Sweden

Required

No pre-hire checks required in general.

Permissible

On immigration compliance, references and education checks are common and permissible with applicant consent. Criminal record checks are only permissible for specific roles (eg, childcare positions) and subject to proportionality requirements.

Switzerland

Required

Immigration compliance. Criminal and credit reference checks for specific roles (eg, attorneys-at-law, bank executives).

Permissible

Criminal and credit reference checks are only permissible if they are relevant to the proposed work and are subject to proportionality requirements. Reference and education checks are common and permissible with applicant's consent.

Taiwan

Required

Work permit and residency compliance.

Permissible

Non-criminal record certificates, reference and education checks are permissible with applicant consent, although some restrictions apply.

Thailand

Required

Visa and work permit compliance. Age of the employee (the employee must not be younger than 15).

Permissible

The use, publication or distribution of any information obtained requires consent from the candidate who has given such information.

A candidate can be asked to have a medical examination but this should only be after the employer has made a conditional offer of employment to a selected candidate.

If criminal or education checks are carried out, or employer references are sought, the candidate's consent should be obtained.

Turkey

Required

None.

Permissible

Pre-hire checks (eg, criminal and credit reference, reference and education checks) are only permissible with the applicant's consent. Depending on the position of the employee, pre-hire checks are common.

Uganda

Required

Immigration compliance for all non-nationals.

Permissible

Criminal and credit reference checks are permissible. Reference and education checks and medical examinations are common and permissible.

Ukraine

Required

For non-Ukrainian citizens, employers must check for compliance with immigration requirements and obtain work permits (unless either the employer or employee falls under a special category, as discussed in the Immigration section below).

Employees must provide a valid ID and, except for first-time employment, their labor book. On a case-by-case basis, employers can request employees to provide documents confirming education (specialty, qualification), health status, etc., to confirm compliance with requirements established for a specific profession or position or the work performed. For example: to be employed as an officer responsible for labor protection, an individual shall provide the employer with a certificate that proves the employee's knowledge in the area of labour protection; or if the job description provides that the employee's duties will include operation of a vehicle, the employer is entitled to require a driving license.

Permissible

An employer cannot require candidates or employees to provide additional documents/information, not specifically required by law, as a condition precedent to the employment. The ability to conduct any pre-hire or post-hire checks is very limited by labor and personal data protection laws. In most cases, checks not expressly required by law are possible only with written consent.

United Arab Emirates

Required

Foreign employees must receive prior approval from the Ministry of Human Resources and Emiratization (MOHRE – formerly, the Ministry of Labor), or relevant free zone authority, and the immigration authorities before they can be hired on local employment contracts. The level of background checking and screening carried out by the UAE authorities varies according to the nationality of an individual. As part of this approval process, since January 2016, employers registered with MOHRE are now required to submit a completed offer letter (signed by both parties) using MOHRE's standard form offer letter. The terms of the employee's employment contract cannot then differ from the terms of the offer letter.

Permissible

Generally, employers in the UAE are not able to obtain the same level of information from background checks as they can in other jurisdictions, and in most cases, the employees themselves will be required to provide this information.

United Kingdom

Required

Immigration compliance. For certain limited occupations (eg, solicitors, chartered accountants), a criminal records check.

Permissible

Criminal and credit reference checks are only permissible for specific roles (eg, certain finance positions) and are subject to proportionality requirements. Reference and education checks are common and permissible with applicant consent.

United States

Required

None, except in certain regulated industries which may require fingerprinting, background checks, motor vehicle histories, and/or drug/alcohol screening.

Permissible

Laws vary from state to state. Reference and education checks are common. Criminal background and credit checks generally may be performed in accordance with applicable federal, state, and local law, with an increasing number of state and local jurisdictions limiting criminal history questions on applications and permitting such checks only following a conditional job offer. Medical examinations and drug and alcohol screening are generally permissible if conducted post-offer and in accordance with applicable law.

Venezuela

Required

There are no mandatory requirements, apart from immigration compliance for foreign employees.

Permissible

Reference and education checks are common and permissible with applicant consent. Criminal records checks are generally not permissible, because Venezuelan law prohibits discrimination based upon criminal records.

Vietnam

Required

Before hiring foreign employees to work in Vietnam, employers must obtain written prior approval from the Ministry of Labor, Invalids and Social Affairs (MOLISA).

Possessing a valid work permit issued by the provincial labor authorities is a compulsory condition for foreign citizens to work in Vietnam, except for where an exemption applies. Legal sanctions for the employer of a foreign citizen without a permit include fines, and the authorities may even suspend a business' operations. A foreign citizen working in Vietnam without a work permit risks deportation. Usually, the employer will assist the employee to obtain a work permit, and where this is not the case, it is in the employer's interests to verify the existence of a valid work permit.

Application for prior written approval or a work permit can be submitted physically, via post or electronically at http://dvc.vieclamvietnam.gov.vn/.

In addition, a visa/resident card is required for foreign nationals entering Vietnam to work.

Permissible

Employers may request that their employees provide information relating to the execution of an employment contract, such as full name, age, gender, residence address, education level, occupational skills, and health conditions.

There are no regulations on obligatory pre-hire checks, including pre-hire reference checks, pre-hire criminal checks or pre-hire credit checks, in the Labor Code 2012. However, specific regulations do exist in more heavily regulated fields, such as aviation, security and medicines. Questions about an applicant's past, health and criminal record are generally permissible in Vietnam.