Background checks on employees: what is allowed

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A job candidate who receives a background check form to sign does not always know that they have the right to ask what exactly will be checked, and to refuse to give information that the law prohibits demanding. The employer is not all-powerful: it is bound by law.

What exactly may an employer check, and what may it not?

Background checks in Israel are regulated by several laws: the Protection of Privacy Law, 5741-1981, the Employment (Equal Opportunities) Law, 5748-1988, the Genetic Information Law, 5761-2000, and the Criminal Information and Rehabilitation of Offenders Law, 5779-2019. The Privacy Protection Authority enforces the Protection of Privacy Law, and claims for discrimination at work are heard in the Labor Court.

The basic rule: the Protection of Privacy Law prohibits invading a person’s privacy without their consent, “informed consent, express or implied” (sections 1 and 3). Information from the criminal register is given only to the bodies and office holders listed in the First Schedule to the Criminal Information and Rehabilitation of Offenders Law (section 11), and special laws set their own arrangements, for example the Prevention of Employment of Sex Offenders in Certain Institutions Law, 5761-2001 (חוק למניעת העסקה של עברייני מין במוסדות מסוימים, התשס״א-2001), which requires police approval before an adult is hired to work in an institution where they are in regular contact with minors. Any other employer may not demand criminal information.

Criminal checks and a criminal record: the limits

An employer that is not entitled to it by law may not demand criminal information, directly or indirectly, including in an affidavit, a declaration or a questionnaire, and even with the candidate’s consent (section 3(b) of the Criminal Information and Rehabilitation of Offenders Law); such a demand for employment purposes is an offense punishable by up to two years’ imprisonment (section 42(a)). A person does not have to disclose a record that has lapsed or been deleted, a closed file or a file in which proceedings were stayed (section 37), and a person who is not entitled to receive criminal information will not take it into account in their decisions (section 38).

An employer that took into account criminal information that it is not entitled to receive is liable to up to one year’s imprisonment (section 42(b)). A criminal past in itself is not one of the grounds of discrimination listed in section 2 of the Employment (Equal Opportunities) Law, so the protection against its use rests mainly on the Criminal Information Law.

Medical checks and genetic tests

A medical check involves an invasion of privacy, so it requires the employee’s informed consent, and it must be relevant to the role. Under section 29 of the Genetic Information Law, 5761-2000, an employer will not demand genetic information or a genetic test from an employee or a candidate, will not harm them because they refused and will not use such information, except in workplaces set by the Minister to protect the employee’s health. Such a demand is an offense punishable by one year’s imprisonment or a fine (section 38(d)).

Demanding medical information, for example an HIV test, is legally problematic: an employer that demanded information from an employee or a candidate about their disability bears the burden of proving that it did not discriminate (section 13 of the Equal Rights for Persons with Disabilities Law, 5758-1998, which applies section 9(c) of the Employment (Equal Opportunities) Law), and in criminal proceedings a similar presumption arises against it (section 15(d)). Even when there is a clear link to the role, the employee’s informed consent is required.

What else may not be checked, even if people do not always know it

Many employers do not know they are crossing a line. Collecting information about debts, bank accounts or personal relationships without consent may be an invasion of privacy (sections 1–2 of the Protection of Privacy Law), and a question about views, political party or religion shifts the burden of proof to the employer in a discrimination claim (section 9(c) of the Employment (Equal Opportunities) Law). An employer that collects such information exposes itself to a claim.

Protected categories: sex, age, race. They may not be asked about or checked

The Employment (Equal Opportunities) Law prohibits discrimination on grounds of, among others, sex, sexual orientation, personal status, pregnancy, parenthood, age, race, religion, nationality, country of origin, views or political party (section 2), and prohibits demanding a candidate’s military profile (section 2A). An employer that asked a candidate about a subject on which discrimination is prohibited, for example about their personal status or about pregnancy, bears the burden of proving that it did not discriminate (section 9(c)), and in criminal proceedings a presumption arises against it that it breached the prohibition (section 15(d)). The prohibition on discrimination because of disability is set out in section 8 of the Equal Rights for Persons with Disabilities Law. The rule does not apply only to questions in an interview: a systematic online search for information about the candidate, without their knowledge, may also be problematic.

Notice and consent procedures: the employer’s duties

Israeli law has no dedicated notice procedure for background checks like the one in the United States. What does exist: a check that involves an invasion of privacy requires the candidate’s informed consent (sections 1 and 3 of the Protection of Privacy Law), so it is advisable for the employer to set out in advance and in writing what will be checked and for what purpose; only a body that the law entitles to it may receive criminal information (section 11 of the Criminal Information and Rehabilitation of Offenders Law); and an employer of more than 25 employees must, subject to the exceptions in the law, give a candidate written notice about the progress of the screening procedures and about not being hired (section 3A of the Notice to Employee and Job Candidate (Terms of Employment and Screening and Hiring Procedures) Law, 5762-2002 (חוק הודעה לעובד ולמועמד לעבודה (תנאי עבודה והליכי מיון וקבלה לעבודה), התשס״ב-2002)).

Claims and compensation in case of a breach

An employee whose employer checked personal information without consent, or checked information that the law prohibits, has three tools: (1) a complaint to the Privacy Protection Authority, (2) a complaint to the Equal Employment Opportunities Commission, (3) a civil claim for damages. In a claim for invasion of privacy, the court may award compensation even without proof of damage, up to the cap in section 29A of the Protection of Privacy Law (an amount updated every month according to the index), and double that amount if it was proven that the invasion was committed with intent to harm; in a discrimination claim, the Labor Court may award compensation even without financial damage (section 10 of the Employment (Equal Opportunities) Law).

Practical advice for candidates and employees

If an employer asked for a background check: (1) ask in writing to find out exactly what information it will check, (2) do not sign a general consent, because informed consent requires that you know exactly what will be checked, (3) pay attention to the specification: if it says “a general background check”, that is legally problematic, (4) if the employer says that “problems” were found, ask for details in writing and give yourself time to object.

Frequently asked questions

May an employer demand information about my criminal record?

Only if the law entitles it to. An employer that is not entitled to it by law may not demand criminal information, directly or indirectly, including in an affidavit, a declaration or a questionnaire, and even with the candidate’s consent (section 3(b) of the Criminal Information and Rehabilitation of Offenders Law); such a demand for employment purposes is an offense punishable by up to two years’ imprisonment (section 42(a)).

Can an employer require me to take a genetic test or a medical exam?

A genetic test, no: under section 29 of the Genetic Information Law, 5761-2000, an employer will not demand genetic information or a genetic test from an employee or a candidate, except in workplaces set by the Minister to protect the employee’s health. Any other medical check involves an invasion of privacy, so it requires the employee’s informed consent, and it must be relevant to the role.

I was asked in a job interview about pregnancy or family status. What does that mean?

An employer that asked a candidate about a subject on which discrimination is prohibited, for example about their personal status or about pregnancy, bears the burden of proving that it did not discriminate (section 9(c) of the Employment (Equal Opportunities) Law), and in criminal proceedings a presumption arises against it that it breached the prohibition (section 15(d)). The law also prohibits demanding a candidate’s military profile (section 2A).

Is general consent to a background check enough?

Not necessarily. A check that involves an invasion of privacy requires the candidate’s informed consent (sections 1 and 3 of the Protection of Privacy Law), meaning consent in which they know exactly what will be checked, and general consent may not meet this requirement. So it is advisable for the employer to set out in advance and in writing what will be checked and for what purpose.

An employer looked up information about me without consent: what can I do?

You can complain to the Privacy Protection Authority or to the Equal Employment Opportunities Commission, and sue. In a claim for invasion of privacy, the court may award compensation even without proof of damage, up to the cap in section 29A of the Protection of Privacy Law; in a discrimination claim, the Labor Court may award compensation even without financial damage (section 10 of the Employment (Equal Opportunities) Law).