New laws affect job interviews in South Africa – what you should know

The law on the protection of personal data, which came into force on July 1, 2021, should now have an impact on job interviews in South Africa, says André de Villiers, lawyer at Scheepers & Aucamp and member of HR Economics.

The law and how it will affect the questions asked mainly depends on two key factors, he said:

  • Are interviews seen as processing personal data of potential employees or as “data subjects” within the meaning of the law?
  • Are the data collected from potential job seekers worthy of protection within the meaning of the law?

“The second question is perhaps the easier one to answer. The purpose of the law is indeed to protect personal information, and considering that questions and answers typically exchanged in interview processes are definitely personal information – such as race, gender, views, gender and Education – the respondent certainly deserves the protection that the action, “said de Villiers.

The answer to the first question – whether interview processes are to be regarded as processing of personal data – can be found in the definition of processing within the meaning of the law, which includes a large number of actions typically carried out in interviews, such as collection, reception, recording, storage, transmission, destruction of Information, etc., he said.

What that means in practice

By and large, all government and private entities interviewing employees must comply with the provisions of the POPI law during the consultation process, de Villiers said.

“In practice this means that the interviewer must obtain informed consent from the interview partner when he receives, collects and processes the personal data of potential job seekers.

“The hurdle to be overcome is the concept of informed consent. This means that the bodies must explain how they process the personal data received and obtain consent to their processing (in these terms and conditions) and not otherwise. “

Recruiters, recruiters, and public and private bodies – and all parties that could compromise the protection of personal data – now carry a heavy burden on their shoulders during an interview or recruitment process and can be sued if not – compliant Faced with heavy fines from the regulator itself or even prison terms, said de Villiers.

According to Section 10 of the Act, employers are asked to only obtain information that is strictly relevant. You remain responsible to the job seeker at all times to explain what you did with the data.

“For example, race data can only be processed if this is necessary to identify a person or if it is absolutely relevant.”

“In general, the data collected should be earmarked at all times. It is advisable to restrict access to interview records after the hearing process is complete to key employees only and to keep them solely for the purposes of the Department of Labor’s employment justice review.

“So no more résumés that are lying around in the office or in a database for an unpredictable amount of time and are visible to everyone,” he said.

In the declaration of consent that the respondents sign, it is advisable to point out this retention requirement, said de Villiers. He said the interviewer would need to obtain consent before the information is processed (or shared with) anyone else.

“All role-players should ensure that integrity, confidentiality and well-positioned organizational measures are in place, especially if the information is to be transmitted across borders.

“Aspects that interviewers should carefully address in job seekers include issues such as religious and philosophical beliefs, race, ethnicity, trade union membership, political beliefs, health or sexual orientation, criminal behavior, biometric information, etc.,” de Villiers said.

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