How do candidate background check requirements and restrictions vary across South American countries? What is and isn’t allowed in each of them, if compared to US standards? This quick guide compares legislation pertinent to software development companies hiring for product, design, and software engineering positions.

Before we start, a quick disclaimer: while we provide some general information about candidate background report requirements and restrictions, please note that specific regulations may vary depending on the industry your software tends to, user base demographics, and other company-specific regulatory requirements. 

Ubiminds can provide you with an in-depth understanding of local labor laws, as well as of the Privacy (PII) compliance regulations that impact recruiting and hiring of software team members.

For accurate and up-to-date information — reach out to us here.

background check requirements and restrictions

United States: Requirements and Restrictions

Background checks in the U.S. for product, design, and engineering roles involve a comprehensive examination of a candidate’s credentials and past. This process includes verifying educational qualifications, confirming employment history, checking for professional certifications, and, in some cases, scrutinizing criminal records. 

The goal is to ensure the authenticity of a job applicant’s professional background and maintain a secure working environment. However, The Fair Credit Reporting Act – FCRA (15 U.S.C. § 1681) regulates employment screening, emphasizing candidate consent, disclosure, and fairness, while Title VII of the Civil Rights (42 U.S.C. § 2000e) prohibits discriminatory employment practices.

American Standards

Background checks are common and widely accepted.
Employers can conduct comprehensive background checks, including criminal records, employment history, credit checks (with certain limitations), and more.
Candidate consent is required, and employers must comply with the Fair Credit Reporting Act (FCRA) and other relevant federal and state laws.
Drug testing is permitted, and employers have some discretion in implementing drug testing policies, subject to state laws.

Background check providers such as HireRight, Sterling, and GoodHire are widely used by U.S. SaaS companies to conduct thorough and compliant background checks for their candidates. The verification process often includes contacting educational institutions and previous employers to confirm the accuracy of information provided by the candidate.

Frequently asked questions about background checks in the U.S.
  • Are they legal in the U.S.? Yes, background checks are legal in the U.S. and are widely accepted as part of the hiring process.
  • How does the FCRA impact U.S. background checks? The FCRA regulates background checks in the U.S., emphasizing candidate consent, disclosure, and fairness.
  • Can employers conduct drug testing in the U.S.? Yes, drug testing is permitted in the U.S., and employers have discretion in implementing policies, subject to state laws.

Argentina: Allowed, but Restricted Checks

The practice of conducting background checks is not as standardized or as common in Argentina as it is in the United States. However, some companies, especially larger ones or those with multinational ties, may implement background checks as part of their hiring process.

Argentinean Standards

Background checks are generally allowed but limited in scope.
Permissible checks include criminal background checks, reference checks, and verification of educational qualifications.
Privacy laws restrict the collection and use of personal information, and specific consent from the candidate is usually required.
Drug testing is generally prohibited, except in certain safety-sensitive positions.

While some companies may conduct thorough candidate verification, others may rely more on interviews and reference checks. There are legal considerations, though: employers must adhere to Argentine labor laws and data protection regulations.

In Argentina, companies often leverage the services of background check providers like Triton, First Advantage, and Verifile to ensure comprehensive screening while adhering to legal frameworks.

Frequently asked questions about background checks in Argentina
  • Are they legal in Argentina? Yes, background checks are generally allowed in Argentina. Common checks include criminal background checks, reference checks, and verification of educational qualifications.
  • How do privacy laws affect the process in Argentina? Privacy laws in Argentina restrict the collection and use of personal information. Specific consent from the candidate is usually required for background checks.
  • Do different industries require different analysis? While there is no specific industry-wise differentiation, employers must navigate privacy laws and obtain candidate consent for various background checks.

Brazil: Checks Can’t Enable Discrimination

In Brazil, background checks, including criminal and educational verification, are allowed under certain restrictions, and the Consolidação das Leis do Trabalho – CLT (Lei 5452, 1943) is a key labor law governing employment relationships.

Brazilian Standards

Background checks are allowed but subject to certain restrictions.
Employers can conduct background checks based on industry and role requirements, including criminal background checks, reference checks, and verification of educational qualifications.
Candidate consent is typically required, and the purpose and scope of the check must be communicated.
Drug testing is generally prohibited unless required by specific legislation or for safety-sensitive positions, such as direct handling of pharmaceuticals.

Employers in Brazil must navigate these legal frameworks when conducting applicant investigations to ensure fairness and compliance with local regulations. While background checks are allowed, they are conducted within guidelines that avoid profiling people of color and LGBTQIA+ candidates.

Rippling and NeoWay are among the pre-employment checkproviders commonly utilized by companies in Brazil, offering integrated solutions to streamline the screening process.

Frequently asked questions about background checks in Brazil
  • Are they legal in Brazil? Yes, with compliance to labor and privacy laws.
  • How do privacy laws affect the process? LGPD limits data use; a Legitimate Interest Assessment (LIA) is required.
  • How do human rights laws affect them? Anti-discrimination laws prohibit bias based on characteristics.
  • Do different industries in Brazil require different evaluations? Yes, specific roles like bankers or caregivers may allow additional checks.

Chile: No Drug Testing

While background checks are a part of the hiring process in Chile, employers need to be mindful of the restrictions in place, particularly concerning drug testing, and ensure compliance with local laws and regulations. However, employers should communicate the purpose and scope of this due diligence to candidates and obtain their consent before proceeding. 

Chilean Standards

Background checks are generally allowed.
Employers can conduct background checks for criminal activity, work references, and educational qualifications.
Candidate consent is generally required.
Drug testing is generally prohibited unless required by specific legislation or for safety-sensitive positions.

While there isn’t a specific law governing credential validation in Chile, employers generally follow legal principles. Código del Trabajo provisions, including those related to privacy, guide employment practices.

Chilean employers may engage personnel screening services from companies like Accurate Background to navigate legal considerations and maintain hiring standards.

Frequently asked questions about background checks in Chile
  • Are they legal in Chile? Yes, background checks are legal in Chile, provided they comply with labor laws, data privacy regulations, and other applicable laws. Employers can request information relevant to the job position.
  • How do privacy laws affect background checks in Chile? Chile has data protection laws, and companies must justify the need for background checks, limiting the data collected. Employers are required to conduct a Legitimate Interest Assessment (LIA) to demonstrate the necessity of the check.
  • How do human rights laws affect background checks in Chile? Anti-discrimination laws in Chile prohibit bias based on characteristics like criminal convictions. Employers cannot discriminate based on gender, race, place of origin, marital status, color, age, or family status.
  • Do different industries in Chile require different evaluations? Yes, certain industries in Chile permit specific background checks. For instance, roles involving domestic employees, caregivers, heavy-load truck drivers, agricultural workers, bankers, and those handling confidential information may allow criminal background checks.

Colombia: Candidate Consent Is Key

Employers routinely conduct thorough assessments of candidates before finalizing hiring decisions. This aligns with the broader goal of maintaining a secure and trustworthy workforce in various industries across the country.

Colombian Standards

Background checks are allowed but subject to restrictions.
Employers can conduct criminal background checks, reference checks, and verify educational qualifications.
Candidate consent is typically required.
Drug testing is generally prohibited unless required by specific legislation or for safety-sensitive positions.

Colombian labor law, including Codigo Sustantivo del Trabajo Colombia and other regulations, permits background checks. The emphasis is on obtaining candidate consent and adhering to fair employment practices.

Background check providers such as Experian, Accurate Background, and Triton are frequently used by Colombian companies to verify candidate credentials while complying with local regulations.

Frequently asked questions about background checks in Colombia
  • Are they legal in Colombia? Yes, background checks are legal in Colombia and are commonly conducted by employers.
  • What verifications are commonly run on Colombian candidates? Common background checks in Colombia include criminal activity, work references, and educational qualifications.
  • Is drug testing allowed  in Colombia? Drug testing is generally prohibited in Colombia unless required by specific legislation or for safety-sensitive positions.

Peru: Background Checks are Allowed

While professional background checks are available, they may not be as widespread or standardized as in some other countries. Employers have the option to conduct candidate background verification based on their hiring policies and the nature of the positions.

Peruvian Standards

Background checks are generally allowed.
Employers can conduct criminal background checks, reference checks, and verify educational qualifications.
• Candidate consent is generally required.
• Drug testing is generally prohibited unless required by specific legislation or for safety-sensitive positions.

In Peru, Decreto Legislativo Nº 276 (government bodies) and Decreto Legislativo Nº 728 (private entities) govern employment relationships. Background checks are allowed with candidate consent, and fair employment practices are emphasized. The Personal Data Protection Law also plays a role in ensuring privacy rights.

Companies in Peru often turn to work history confirmation providers like Accurate Background, Triton, and First Advantage to ensure thorough screening while respecting privacy laws and regulations.

Frequently asked questions about background checks in Peru
  • Are they legal in Peru? Yes, background checks are legal and commonly conducted by employers in Peru.
  • What verifications are commonly run on Peruvian candidates? Common background checks in Peru include criminal activity, work references, and educational qualifications.
  • Is drug testing allowed  in Peru? Drug testing is generally prohibited in Peru unless required by specific legislation or for safety-sensitive positions.

Ubiminds is Here to Make Hiring Easier.

When it comes to non-public searches, South American countries have varying requirements and restrictions compared to the United States. While the US allows comprehensive criminal histories, substance use analysis, and credit checks, South American countries often have more limited scopes. 

Candidate consent is generally required across the board, but drug testing regulations differ, with most countries prohibiting it unless mandated by specific legislation or for safety-sensitive positions. Although international background checks can take some time, it does bring peace of mind.

For help in being compliant with local legislation without compromising your company’s liability, speak to one of our consultants. Ubiminds is here to connect you with background check services partners who screen social security numbers and send us feedback on social media, court records, and education and employment while staying compliant and respectful towards applicants.

 

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