Obtaining Employee’s Personal Data in Connection with Recruitment
When recruiting, the employer may have a need to obtain and store a variety of employee information, as well as performing various tests and establish employee's criminal background. These measures must comply with the Personal Data Act and Act on the Protection of Privacy in Working Life. These laws control accurately, for what purpose and what kind of information is allowed to collect and store from the applicant and how they should be obtained. Also the carrying out of various personality and aptitude tests is regulated by law.
Obtaining, handling, storing and transferring employee’s personal data as well as testing the applicants and privacy policy are under more detailed surveillance in [Protection of Privacy in Working Life]. Also the establishing the employee’s criminal background and conducting a safety report are handled more closely in [Protection of Privacy in Working Life].
Obtaining personal data
The starting point is that the applicant may only be asked questions related to the job application and the job itself, and only the information necessary for the job application and the job can be stored. The employer is prohibited from asking the employee questions that are of a sensitive nature and from recording such, unless this is necessary for the proper performance of the job in question. As sensitive information may be considered information about the applicant’s state of health, religious views and sexual orientation. Information should primary be collected from the applicant himself/herself. If the employer collects information elsewhere, he/she must obtain consent from the applicant thereto.
Examining the applicant's state of health
The employer is not under a general obligation to examine the applicant’s state of health. In certain circumstances the employer is however, prior to entering into the employment contract, under an obligation to ascertain that the employee is on medical grounds capable of performing the job in question. This is the case for instance where the employee is required to handle dangerous substances in the course of his/her employment or situations where his/her poor state of health might put other persons in danger (e.g. bus drivers). The employer is allowed to ask questions regarding applicant’s health when recruiting only if they are relevant when considering the nature of the job and performing in it.
Performing personality and aptitude assessment tests
The employer may perform different personality and aptitude assessment tests to the applicant. The tests always require an applicant’s consent. It is the employer’s duty to ensure that the methods used for testing applicants are reliable, that the persons carrying out the tests are skilled and that the test results are accurate. The test may be performed, when their purpose is to find out, whether the applicant has the skills to perform the tasks. It is also required that the test results should be relevant for the employment relationship.
Drug testing
The employer may demand for a drug testing certificate from an applicant, if certain workplace related circumstances are fulfilled and if the applicant is supposed to work in a position that requires accuracy, reliability, independent consideration, good reaction time, special trust or if the applicant is supposed to work with minors.
Obtaining credit and criminal records and security clearance
The employer also has a right, under certain conditions, to handle applicant’s personal credit information in order to assess the reliability of the applicant. The employer must inform the employee in advance if it wishes to obtain such information for the purposes of establishing reliability. If the employer obtains the employee's personal credit information, the employer must also inform the employee of the register from which the credit information will be obtained. If information on the employee is collected from a source other than the employee himself/herself, the employer must inform the employee of the information obtained before it is used to make a decision on the employee.
The general rule is that a private employer may not obtain the applicant’s criminal record from the authorities. The employer is, however, under an obligation to ask the applicant to present an extract of his criminal record, being no more than six months old, before the employment contract is entered into where the job in question involves working with children, e.g. in day care centers or schools. In these situations, the Act on checking the criminal background of persons working with children applies.
A job applicant can only be subject to a security clearance on the basis of the criteria laid down in the Security Clearance Act. The consent of the employee is required before a security clearance can be requested.
Storage of data
If an employer wants to keep job applications, data collected from employees or the results of tests it has carried out for future reference, the storage of data must take into account the general obligations imposed on data controllers by data protection legislation, including informing the job applicant how long the data will be kept.