Obtaining Employee’s Personal Data in Connection with Recruitment

When recruiting, the employer usually has 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 quite 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 tests is regulated by law.

Obtaining, handling, storing and transferring employee’s personal data as well as testing the applicants and description of file are under more detailed surveillance in Workplace Privacy [Protection of Privacy in Working Life]. Also the establishing the employee’s criminal background and conducting a safety report are handled more closely in Workplace Privacy [Protection of Privacy in Working Life].

The starting point is that the applicant may only be asked questions related to the job application and the job itself. 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.

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.

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.

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, special trust. The same applies if the applicant is supposed to work with minors.

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 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 a month 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.

It is possible for the employer to ask for the local police or for the security police to carry out a security investigations on the applicant, if the company has a weighty need to protectvaluable trade and professional secrets or other financial interests.Security investigations require the applicant’s consent. Act on Background Checks is applied when acquiring security investigations.

If the employer wants to store the job applications, personal data collected on the employees or the results of the tests for later usethe information is considered to constitute a personal data registry. Hence, if the employer wishes to retain test results for future purposes, the employer must produce a description of file in accordance with the Personal Data Act.The employer does not have a right to copy or in any other away retain the applicant’s criminal record. Personal health information must be kept separately from other information.