Poland: Criminal Background Check for Financial Sector Job Applicants Introduced

(Jan. 9, 2018) On January 1, 2018, amendments to the Polish Labor Code and other laws regulating employment in the financial sector entered into force. (Law of October 24, 2017 on Amending Financial Sector Legislation (DZIENNIK USTAW [OFFICIAL GAZETTE] 2017, No. 2491).)  The new provisions, which were drawn up by Poland’s Ministry of Development, extend the list of business areas in which the review of job applicants’ criminal records and mandatory background checks for those seeking employment in financial institutions are required. (Id. art. 3(2).)

According to legislators, this measure is needed because the lack of such a review has created a vacuum that is especially undesirable in staffing positions charged with high financial risk, valuable assets management, significant financial responsibility, or access to protected data and information. (Lukasz Guza, Banks and Firms Will Review Employee’s Criminal Record, GAZETA PRAWNA.PL (Oct. 10, 2017) (in Polish).)

Under the new Law, employers will be able to request that an applicant provide either a written statement that she or he has no criminal record or a formal background certificate issued by the National Criminal Record Office. The certificate cannot be more than three months old and must prove that the job applicant has never been convicted of intentional crimes against property or those related to documents and information protection, the safety of an economic network, financial exchanges, securities, the violation of financial market rules, or payment services. Rules of expungement should apply. Refusal to provide proof of having a clear criminal record may serve as a reason to deny employment. This requirement applies to all candidates, regardless of the type of employment they are seeking in private and government financial institutions. The Law specifies that it applies to employees of the National Bank of Poland, the Polish Financial Supervision Authority, the Bank Guarantee Fund, the Financial Ombudsman, and the Insurance Guarantee Fund. The same rules apply to providers of electronic financial services and employees of foreign banks working in Poland. The cost of obtaining the certificate is to be reimbursed by the employer. Employers will also be allowed to collect biometric data of employees if this is deemed necessary to preserve information processed by the financial institution (Law of October 24, 2017.)

The Law also requires financial sector employers to review information on whether a job applicant is on the “Denied Persons List” established by the US Department of Commerce or the EU list of people accused of fostering terrorism. (Id.; Council Regulation (EC) No 2580/2001 of 27 December 2001 on Specific Restrictive Measures Directed Against Certain Persons and Entities with a View to Combating Terrorism, EU Publications; Denied Persons List (last modified Nov. 22, 2016), US Bureau of Industry and security.)

Privacy advocates express concerns that this requirement “is very broad and may affect nearly all employees” of financial institutions. (Anna Kobylanska, Poland’s Draft Law on Processing Employee Data Under the GDPR, IAPP.)

Prepared by Michal Dolinski, Law Library Fellow, under the supervision of Peter Roudik, Director of Legal Research.

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