Most new job applications are compiled, sent and processed electronically. Whereas HR departments sometimes take months to evaluate applications for the most suitable candidate, special software and electronic devices can help employers to identify suitable candidates within minutes.
International corporate environments attract employees from all over the world. As face-to-face meetings can be time consuming and expensive (eg, flight and accommodation expenses), video conferences are becoming more common; however, important data protection and privacy rules must be considered.
According to EU and Swiss law, the recording of video conferences and subsequent processing and analysing of face and eye movements – including body language – infringes data protection and privacy rules. Therefore, as the mere recording of a video conference is likely to violate privacy rules, employers will not breach the data protection and privacy rules if no Skype or Facetime interviews are recorded.
Data protection and privacy rules
Employers must bear in mind that any personal data collected should be strictly limited to that which is required to assess and finally decide on the most suitable candidate. Processing data which does not relate specifically to the selection of a suitable candidate violates the data protection and privacy rules.
Further, information must be secured with (at least) a password and in such a manner that it can be accessed only by persons in charge of the recruiting process. As electronic data can never be erased completely, employers must prevent access to applicants' personal information by deleting it once the recruiting process ends.
Social media sites can be useful for identifying job candidates – in particular:
- LinkedIn;
- Xing;
- Facebook; and
- Twitter.
Recruiters use these sites to contact appropriate candidates directly and offer them positions.
LinkedIn, Xing and Facebook users commonly share personal information within each site's respective online community. As the purpose of this information is not per se given and it is freely available, other users are free to use it (ie, there are no basic restrictions on how this data may be used).
However, information received in an application form or email is supplied only for recruitment purposes. Thus, any use beyond this purpose would infringe data protection rules. The person affected by such a violation of data protection and privacy rules could claim damages and delete or adjust their data.
Information concerning the health status of prospective employees is considered highly sensitive data. Depending on the work environment, this data may be important for physical work or safety reasons. For persons working in an office, health information is not generally needed to evaluate job suitability, whereas for construction workers, bridlers and craftspeople, such information is crucial for their job performance.
Employers cannot extract such information from applicants directly, but may send them to a medical doctor, who can provide the employer with information relating specifically to the applicant's suitability for the job (ie, without any diagnoses). Applicants who must complete a medical form are required to inform the employer about their health status.
In certain sectors with high data security risks (eg, the banking, military and public sectors), applicants must have a clean criminal record. If the prospective employee will have access to sensitive data, processing such information with the applicant's approval does not infringe data protection law.
After evaluating several possible candidates, most employers introduce assessment tests. The information gained during said tests may be used and accessed only for evaluation purposes.
The final step of the recruitment process is often a job interview with a department head and/or an HR representative. Such interviews regularly take place online. As mentioned, the recording and post-processing of video conferences is illegal and violates data protection and privacy rules.
Once a hiring decision has been made, applicants must be told whether they have been hired. Unsuccessful candidates have the right to have all processed personal information deleted; many candidates who reach the final stages of the evaluation process are advised to agree to a storage of their personal data. For efficiency reasons and with the applicants' approval, HR departments often consider these candidates for another position in the company instead of recruiting new applicants.
For further information on this topic please contact Valeria Gumuchdjian at Rihm Rechtsanwälte by telephone (+41 44 377 77 20) or email ([email protected]). The Rihm Rechtsanwälte website can be accessed at www.rihm-law.ch.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
