With 2021 well underway it’s perhaps fair to say that we are all hoping for a smoother ride than we experienced last year. There’s no denying that 2020 was a year like no other and for recruitment businesses the compliance landscape has become highly challenging to say the least. Even before Covid-19 emerged and changed our lives overnight, the talent landscape was shifting, with, for example, the rise in the contingent and gig workforce presenting compliance challenges for agencies placing contractors. The lead up to the end of the Brexit transition period and a last-minute deal that has a number of details yet to be finalised has only exacerbated the complexity of international recruitment screening.
As 2021 progresses with the pandemic still very much impacting the world of work, there are many compliance considerations that staffing firms need to tackle in the coming months – both relating to their own employees and their candidates.
The rise of remote working
While most staffing companies have become accustomed to remote working, managing staff who are operating from home on a longer-term basis does present a particular data-management challenge. As recruiters continue to work virtually, monitoring employees is creeping up the agenda for many businesses, but it is a delicate subject that needs careful consideration. Understandably, agencies need to protect their intellectual property and any sensitive data that consultants are handling on behalf of the business, its clients and any candidates. But with recruiters working from home, the use of personal devices to access systems and data has the potential to expose firms to compliance risks. It’s advisable, then, that staffing companies ensure there is absolute clarity regarding how company information is accessed and shared in a remote world.
Monitoring the health of your workforce
From a Covid-19 compliance point of view, staffing agencies that place international workers are facing challenges from two sides: the health and safety of their own recruitment staff, as well as their candidates. From an internal point of view, the issue of monitoring and tracking staff who have had the virus, as well as understanding what you as an employer can and can’t ask about Covid-19 symptoms, needs careful thought. A cautious approach is needed when considering the data that should be recorded and whether you have sufficient purpose to keep this information, in line with regional data regulations.
As a case in point, if you are monitoring employee temperatures when they are on-site, consider whether or not you need to store this data. If you choose to keep a record, this is considered personal health information and should be handled as such – meaning who has access to the data and how long it is kept on file will need to be agreed upon in line with regulations.
Businesses wishing to ask employees if they have had the vaccine – or indeed if they intend to – need to tread very carefully. Like with many issues relating to Covid-19, the implementation of the vaccine is so new that there are no clear rules surrounding what is and isn’t allowed. However, recruiters should follow the basic principles of non-discriminatory information requests and data storage. Employees are within their rights not to disclose the information and you could face challenges if you are requesting this from your staff.
When it comes to international candidates and contractors that your agency may be placing overseas, the subject is even more complex, with country-by-country nuances in place. For example, in the UK and Italy it is entirely permissible to ask staff about symptoms they may have, while other countries have different laws. In France and the Netherlands, for example, businesses are not allowed to ask about symptoms at all. Clearly this is an incredibly complex matter, which will only be exacerbated by end clients driving their own preferences, so it is vital to seek advice from an expert that can guide you through the process to ensure you comply with local requirements.
Post-Brexit compliance
While the main topic of conversation at the moment is centred on Covid-19, the impact of a post Brexit landscape can’t be ignored from a compliance point of view. It’s perhaps important to note, though, that there are some elements of the deal yet to be fully clarified, including how data can be transferred and processed between the UK and EU. This in itself poses a compliance minefield for recruiters with multiple offices overseas where candidate information is shared between the two jurisdictions.
However, what has been put in place already are immigration requirements which recruiters need to be aware of. While citizens of an EU member state who relocated to the UK, and UK citizens who moved to an EU country before the end of the Brexit transition period on 31st December 2020, may continue living and working in that country now that the Brexit deal has been made, necessary action must be taken to protect this position. In order to do this, individuals must apply for a resident status under the EU settlement scheme by 30th June 2021 if they haven’t already. However, those individuals that choose to relocate now, will have to comply with EU and country specific immigration laws – obtaining the necessary work visa, for example – and restrictions are also in place for business visitors and cross border workers.
This will naturally also have an impact on recruitment firms. EU and UK citizens that recruiters are placing across the two jurisdictions will need to present correct right to work and visa documents for the specified destination. Failure to do so could expose staffing firms themselves to non-compliance risks and could potentially damage client and contractor relationships.
However, this is a highly complex issue and firms engaging contractors, candidates and their own staff across the two jurisdictions should seek out legal guidance pertinent to their specific circumstances.
Screening compliance
While remote hiring is being widely embraced as businesses seek to adjust to a virtual landscape on a more permanent basis, it does throw a number of recruitment compliance challenges into the mix. Verification checks and screening processes do currently require in-person involvement at some point. There are tools that have been used during the pandemic to allow checks to still be carried out and the DBS has temporarily allowed some documents to be submitted via video links or scanned versions to be shared to verify ID and right to work. But whether this will continue on a more permanent basis is still uncertain.
Elements of the broader background screening process can be shifted online, but it is important to ensure that any tools your agency might use or that clients are building into their recruitment process are fit for purpose. At Sterling, we use artificial intelligence and human verification to validate documents which speeds up the process in a virtual world and improves the candidate experience. But the in-person element is still necessary, so be wary of any solution that offers a complete online verification process as it is unlikely to be compliant.
The future
While the future may still be fairly uncertain, we do know that change is afoot. When it comes to screening and background checks, the events of the last year have set the wheels of change in motion, and staffing companies will face new challenges over the coming year. But change isn’t always bad. In fact, when it comes to compliance, we believe that this year will be the time to embrace change and use it as an opportunity to drive positive compliance improvements.
