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Criminal Background Check: When Can the Company Require this Documentation

Admission processes require great care during their execution. From the first interviews to the moment the employee requests documents, attention and preparation are required.

Many documents are needed for this whole process to take place. However, other data should not be required in selection processes or in hiring to avoid awkwardness, embarrassment or lawsuits.

When we refer to Criminal Background, there is a small exception so that this information can be requested.

However, it is important to know: when can a company require a criminal record certificate for an employee? How should this be done in a non-discriminatory and unconstrained manner? Also, which companies have the right to request this data?

What are criminal records?

It is a public document that aims to inform the criminal processes and records that a person may have in their name. This certificate indicates the individual’s status, based on police records.

In addition, the data presented does not mean that there was any conviction, but that there is a judicial or criminal condition attached to that person.

How important is it to take a criminal record from employees?

Checking the certificate provided by the IIRGD (Ricardo Gumbleton Daunt Identification Institute), an agency of the Public Security Department, is important for the company to recognize the existence or absence of a criminal record on the part of the employee.

The document reveals the situation of the citizen at the exact moment of the research, pointing out only the negative or positive answers in relation to their current legal pending issues.

An important point of attention is that this information cannot be used to cancel the individual’s candidacy for the vacancy in question, but rather so that the HR sector can help the candidate to regularize their situation (if necessary), avoiding problems for both , as well as for the company, in addition to guaranteeing the safety of both.

What positions can justify the criminal record request?

According to the opinion described in the Repetitive Magazine Appeal Incident – Topic No. 0001, of the TST, the Criminal Background Certificate may be required for certain offices, such as:

  • Caregivers of minors, the elderly or the disabled (institutions such as day care centers, nursing homes and the like are included);
  • Cargo road drivers;
  • domestic servants;
  • Agribusiness employees who work in the handling of sharp work tools;
  • Banking and the like;
  • Workers who work with toxic substances, narcotics and weapons;
  • Workers who work with confidential information;

What is the criminal background check for?

The consultation of the negative criminal record certificate helps in the objective verification of possible pending issues in the judicial and criminal spheres.

Its validation is used, for example, for setting penalties, approving candidates in public tenders and for hiring employees , in accordance with the aforementioned legal provision.

Can the company require the criminal certificate?

There was a time when I could request a criminal record clearance certificate at the time of admission. However, currently, the company obtains release only for specific positions following the definition of the TST (Superior Labor Court).

What happens to the company that demands the criminal certificate without being valid?

The act performed out of compliance with the TST proposal characterizes moral injury , translating into discriminatory treatment when there is no justification for the requirement of such a document.

With this, the company is liable to compensation, regardless of the admission of the individual.

How should the company prevent discriminatory treatment during the selection process?

In order for the company to avoid problems by requesting a criminal record, it is necessary to constantly check the legal bases, identify the need to request this information and align the selection process with HR.

In addition, when the criminal record request is required, the company must perform this action in a macro, and not only for certain employees. This prevents employees from feeling uncomfortable or thinking they are experiencing persecution or discrimination.

What other data can the company consult?

In the case of admission, companies can check technical and academic data, in addition to the documents required to complete the admission process (RG, CPF, Voter Title, etc). Previous results, relationship and reputation of the candidate with the companies in which he worked, as well as the stability and durability of the candidate in other jobs can be verified.

All of this helps the employer in the hiring process and in viewing the candidate as a future employee of the company, so that they can be sure that their goals and visions are aligned.

Why query data?

This helps the company in the process of getting to know the employee, creating identification or understanding possible future divergences.

In addition to access to basic and financial data, which are extremely important for labor calculations, they may also be necessary for the inclusion of beneficiaries and other actions.

What documents are prohibited from being required in hiring?

Knowing which documents cannot be required during the selection process or when hiring the employee helps to avoid future problems.

  • Previous experience for more than six months in the same type of activity;
  • Certificate attesting that the worker does not have a labor lawsuit filed (negative labor certificate);
  • Clearance certificate SPC, SERASA or other similar credit protection services;
  • Criminal background information, such as a criminal clearance certificate, except for exceptions determined by the TST
  • Requirement of examinations, certificates or declarations of sterilization or pregnancy;
  • HIV testing and toxicological tests (the latter being allowed only for professionals who carry out a risk activity for their safety).
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Written by Logan Voss

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