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Background checks: risk levels and compliance

In South Africa, conducting background checks is a vital step in the hiring process for employers, or when engaging service providers. These checks help to confirm that candidates are trustworthy, skilled, and suitable for the organisation. However, it is crucial to understand the legal framework and regulations governing these checks to safeguard the employer and the candidate.

When evaluating candidates, it is important to categorise them based on risk levels associated with the position:

1. Low risk: Positions with minimal access to sensitive or financial information (e.g., entry-level roles).

2. Medium risk: Roles with some responsibility (e.g., administration, support staff).

3. High risk: Positions involving significant responsibilities (e.g., finance roles, childcare workers).

Conducting background checks by risk level

Risk and legal experts should concur when developing a background screening policy, which should be approved at the executive level.

Low-risk background checks

For low-risk positions, basic checks are often sufficient:

• Identity verification: Confirm the candidate’s identity using a South African ID document or passport.

• Employment verification: Contact previous employers to verify employment history.

• Criminal record check: You can request a criminal record check with the individual’s consent.

• Education verification: Verify any qualifications claimed.

Medium-risk background checks

Medium-risk roles may require a more thorough examination:

• All low-risk checks: Start with the checks mentioned above.

• Credit checks: For roles that involve financial responsibilities, get written consent from the candidate to conduct a credit check. This must comply with the National Credit Act and the Protection of Personal Information Act (POPIA).

• Reference checks: Obtain references from previous employers to gain insight into the candidate’s work ethic and behaviour.

• Skill assessments: Ensure the individual is capable of skills they claim to have.

High-risk background checks

High-risk positions require exhaustive background checks:

• All medium-risk checks: Include all checks from medium-risk assessments.

• Psychometric assessments: Consider conducting personality assessments to determine suitability for the role, integrity of the candidate, and a behavioural profile.

• Social media screening: While not mandatory, reviewing public social media profiles can provide additional insights into a candidate’s character.

Legal considerations in South Africa

1. Compliance with PoPIA: The Protection of Personal Information Act (PoPIA) governs how personal information is handled. Employers must ensure that:

o The candidate has consented to the background check.

o Personal information is processed lawfully, minimally, and only for necessary purposes.

o Job applicants are made aware of their rights concerning their personal information.

2. Fair treatment: Ensure all candidates are treated consistently and fairly during the background check process. Discrimination based on race, gender, or any other protected characteristic is illegal and can lead to legal consequences.

3. Inform candidates: If adverse information is found during a background check, employers must inform the candidate and provide them an opportunity to respond or clarify the information.

Conducting background checks in South Africa is essential for ensuring workplace safety and integrity. By tailoring the depth of these checks to the risk levels associated with different positions, employers can make informed decisions, while remaining compliant with South African laws. Understanding the regulations, obtaining consent, and treating candidates equitably are critical steps.

Implementing thorough yet fair background checks will create a safe and productive work environment that benefits employers and employees.

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