Recruiting staff in Romania may seem daunting to employers, specifically to those foreign-owned, unfamiliar with Romanian employment legislation. Nevertheless, if certain basic rules are determined and further observed, the recruiting procedure should run smooth and clean from a legal perspective.
From the outset, when hiring process is launched within a company, employers most often want to know and consider the background of the applicants in order to make the proper selection and take a final decision.
Mandatory medical checks
When the parties decide to go forward and conclude an employment agreement, it is mandatory for the candidate to provide a medical certificate proving that he/she is fit to be hired on a specific position and perform the related activities prior to the hiring date. Lack of the medical certificate upon hiring of an employee leads to the nullity of the employment agreement.
As regards the controversial drug testing, such is not required by law, but is not prohibited and may be performed with employee’s consent.
What information may be checked?
Apart from the above medical check, the Romanian legislation is somewhat deficient as well as restrictive when it comes to providing the legal procedure for recruiting staff. As a rule, no other general background checks than the prior check of the candidate's professional and personal abilities are compulsory for candidates, except for specific situations regulated by special legislation (for example, in some professions candidates are required to provide a police clearance certificate).
Otherwise, the information requested by the employer to the candidates during the prior background check has the only purpose to determine the capacity to hold the respective job position and the professional abilities of the candidate.
References from former employers
References from former employers are expressly permitted by the law, however, the information requested to the former employer must be limited to the employee’s job activities and the duration of his/her employment.
On top of that, the employer must inform the candidate before conducting any reference checks with former employers.
Other legal guideline is not provided for the recruiting of staff, therefore, the employers must make-do with the available legal rules and cooperation of the candidates for the aspects that are not expressly requested under the law.
Discrimination issues
As regards discrimination issues that may arise during the recruiting process, the relevant enactments provide that pregnancy tests are expressly prohibited to be requested upon hiring. The more so, requesting a candidate to sign an engagement that she will not get pregnant or will not give birth during the employment period is also expressly prohibited and considered as discriminatory practice.
Exceptions to the above rules are to be found in cases in which a specific job position is prohibited to pregnant or nursing women due to the nature and particular conditions of the respective work.
Moreover, non-discrimination rule related to any of the protected criteria (e.g., race, nationality, gender, religion, age, etc.) is expressly requested under the law in connection to the hiring conditions, recruitment criteria, selection of the candidates, as well as access to all forms and levels of professional orientation, training and development.
In such a context, the recruitment announcement should be carefully drafted and should establish a selection of candidates based on professional criteria which are deemed to be objective and decisive requirements for occupying a certain position.
Background checks in the context of COVID19 pandemic
Considering that the COVID19 pandemic is still unfold, many employers often seek legal advice concerning the possibility to request the candidates information in regard to their vaccination status and whether they may impose vaccination to candidates they intend to hire.
Adding to the polemic, the alert state was no longer extended in Romania and the previous restrictions imposed due to such alert state are no longer legal obligations, but merely recommendations, while the COVID19 pandemic subsists and produces various negative effects in the business market.
In these circumstances, considering that in Romania vaccination against COVID19 is voluntary while the alert state no longer subsists in present days, requiring candidates to get vaccinated is at least controversial and may lead to discrimination claims from candidates refusing to get vaccinated or provide their vaccination status and who are later on disadvantaged in the recruitment process.
Considering this background employers are put in the situation to accept that both the vaccination and the disclosure of vaccination status are made on a voluntary basis only.
Employment Policy Guidelines to Member States of European Union
Recently, the European Union Council issued the Decision 2020/1512 on guidelines for the employment policies of the Member States, mainly aiming to develop a coordinated strategy for the Member States for employment, to promote a skilled, trained and adaptable workforce, as well as to combat social exclusion and discrimination.
Although having a more abstract frame, the guidelines should be taken into account by Member States in their employment policies and reform programmes. Part of the directory lines to be taken into consideration refer to raising the demand for labour, including by reducing the barriers that businesses face in hiring people, as well as to promote equal opportunities for all, and in particular for groups that are under-represented in the labour market, to ensure equal treatment regarding employment, being also encouraged that the gender employment and pay gaps to be tackled.
