The law on the protection of personal information, which entered into force on July 1, 2021, should now impact job interviews in South Africa, said André de Villiers, lawyer at Scheepers & Aucamp and member of HR Economics.
The law and its influence on the questions that will be asked will depend mainly on two key factors, he said:
- Are interviews considered to be the processing of personal information of potential employees or “data subjects” within the meaning of the law?
- Does the data collected from potential job seekers merit legal protection?
“The second question is perhaps the easiest to answer. The purpose of the Act is indeed to protect personal information, and given that the questions and answers typically exchanged in interview processes are certainly personal information – such as race, gender, opinions, sex and education – the interviewee certainly deserves the protection offered by the Take Action, says de Villiers.
The answer to the first question – whether interview processes can be considered processing of personal information – can be found in the definition of processing as set out in the Act, which includes a multitude of acts typically performed during interviews. such as collecting, receiving, recording, storing, transmitting, destroying information, etc., he said.
What this means in practice
Generally speaking, all public and private bodies that interview employees will have to comply with the provisions of the POPI law during the interview procedure, said de Villiers.
“In practice, this means that the interviewer will need to obtain the informed consent of the interviewee when accepting, collecting and processing the personal information of potential job seekers.
“The obstacle to overcome is the concept of informed consent. This means that organizations will have to state how they should handle the personal information obtained and obtain consent to process it (in these terms) and no other.
Human resources specialists, recruiters, and public and private organizations – and any party that might be considered interfering with the protection of personal information – now have a heavy burden on their shoulders during an interview or interview procedure. placement and can be prosecuted if found to be non-compliant, risking heavy fines from the regulator itself, or even jail time, de Villiers said.
According to article 10 of the law, employers are requested to obtain only strictly relevant information. They will at all times remain responsible to the job seeker for explaining what they did with the data.
“Race data, for example, can only be processed if it is essential to identify someone or when it is strictly relevant.”
“As a general rule, the data collected should at all times be purpose-specific. It is recommended that access to the records of interview procedures be strictly limited to essential personnel at the end of the interview procedures and that they be retained only for employment equity verification purposes by the Ministry of Labor.
“So no more resumes lying around in the office or on a database, for an unpredictable length of time, for all to see,” he said.
In the consent form that respondents sign, it will be prudent to inform them of this retention obligation, de Villiers said. He said the investigator should obtain consent before the information is processed by (or shared with) another person.
“All actors need to ensure that integrity, confidentiality and well-positioned organizational measures are in place, especially if information is to cross borders.
“Aspects investigators should be cautious about when dealing with the job seeker include aspects of religious and philosophical beliefs, race, ethnicity, union membership, convictions policies, health or sexual orientation, criminal behavior, biometric information, etc. Said de Villiers.
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