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Israel: Employer’s Permitted to Have Information on Relevant Pending Criminal Investigations of Potential Employees

(Mar. 4, 2013) On February 21, 2013, the Supreme Court of Israel rendered a decision in a case lodged by a plaintiff whose candidacy for the position of regional distributor with Mifal Hapais, a public body that enjoys the exclusive franchise to operate the country’s lottery, was rejected based on his disclosure of a then pending criminal investigation against him on charges of facilitation of bribery. One of the criteria for gaining the regional distributorship was a demonstration of “honesty and truthfulness.” (C.A 8189/11 Rafael Dayan v. Mifal Hapais [in Hebrew], State of Israel: the Judicial Authority website (Supreme Court decision, Feb. 2, 2013); Mifal Hapais, Mifal Hapais website, (last visited Feb. 28, 2013).)

Among other requirements, candidates for the position with the lottery organization were required to submit a declaration regarding the existence of any pending investigations against them. The criminal investigation against the applicant was closed, based on lack of evidence, about six months after his candidacy was rejected. (C.A 8189/11 Rafael Dayan v. Mifal Hapais, supra.)

Justice Dafna Barak-Erez held that a criminal investigation of an offense related to a person’s integrity is a relevant consideration for disqualifying a candidacy. Accordingly, an employer or an issuer of a public tender may request a candidate or an applicant to submit information concerning criminal convictions and investigations that may be relevant to assumption of the position. Information on a pending investigation against a person, according to Barak-Erez, is private information. A party entering a contract with a person who is the subject of such investigation, however, has a legitimate interest in receiving information that directly relates to the qualifications of or to the risk involved in entering a contract with such a person, the Justice stated. (Id.)

Having balanced the interests of both parties, Justice Barak-Erez determined that a person should not be requested to provide information about criminal convictions that were outdated or expunged. Requests for information on pending investigations, however, where relevant to the type of the position or the public tender, are lawful if they meet the requirement for proportionality. The Justice therefore ruled against the plaintiff in the case and in favor of Mifal Hapais. (Id.)