Both employer and employees pay attention to privacy; both employment and security are guaranteed
In recent years, various kinds of fraud have appeared which are often caused by the leaking of personal data; therefore, more and more attention has been paid to personal privacy information protection. On the job market, some enterprises or employers ask or require job seekers to provide privacy information on the grounds of operation and management when recruiting employees, causing interference with the field of personal privacy, or job seekers to be perplexed by improper use of personal information.
Categories of the privacy information that employers cannot collect
According to Article 1-1 of the Enforcement Rules of Employment Service Law, categories of privacy data are as follows:
1. Physiologic Information: Genetic test, Medication test, Medical treatment tests, HIV tests, Intelligence Quotient tests and Fingerprints.
2. Psychological Information: Psychiatric tests, Loyalty tests, Polygraph tests etc.
3. Personal lifestyle information: Financial records, Criminal records, Family plans and Background checks.
Privacy information that employers collect should be “related to the employment”
After employers understand the types of privacy information, they also need to know the requirements for being “related to the employment”.
Requirements for being “related to the employment”:
1. Personal interest of the persons concerned shall be respected when requesting privacy information.
2. No boundary shall be crossed beyond the mandatory and specific confinements upon the economic demands or public interest protection.
3. The appropriate and decent relations with the intended purposes shall be satisfied.
Thereafter, when the employers ask the job-seekers or employees to present personal information, they will understand better what questions they can ask and cannot ask to meet the requirements for being “related to the employment”. That is, in the interviews, the employers should ask job seekers about the competence and conditions required for the jobs, respect the personal interest of the persons concerned, and not force job seekers to answer; otherwise they may violate the law.
Cases on employment privacy
Xiao-Hua went to Department Store A for a job interview of the customer service and telemarketing personnel. She was requested to provide a “copy of both sides of her ID card”, “Police Criminal Record Certificate (i.e. clear criminal record)”, and “Personal Credit Report” after she was accepted. If the said information was not provided or supplemented, the enrollment procedure was deemed as incomplete.
In this case, the information recorded on the ID card is one of the personal information items; the copy of the front side of ID card is presented to confirm the identity of Xiao-Hua, but the information on the reverse side of ID card is privacy information unrelated to the employment. For the employers to collect such data, they have to obtain the consent of Xiao-Hua. In addition, the “clear criminal record” and “Personal Credit Report” are personal life information under the category of employment privacy; when the employer intends to collect relevant data under such category, the professional competence, purposes of the economic demands or public interest, necessity of the job vacancies and the appropriate and decent relations with the intended purposes shall be satisfied. The employer needs to explain the relevance with strong reasons; otherwise, the employer’s request has violated Paragraph 2, Article 5 of the Employment Service Act.
Xiao-Ming went to a security company to be recruited as a security guard; in the interview he was asked by the company whether he had any criminal records such as offenses against sexual autonomy, offenses against sexual morality, burglary, robbery and banditry referred to in the Criminal Law, and that relevant supporting documents needed to be submitted. Xiao-Ming thought that his personal privacy was violated. Could he not provide such data? Did the employer break the law?
The criminal records that the security company would like to collect from Xiao-Ming were personal life information under the category of employment privacy. However, according to Article 10-1 of the Private Security Service Act, if anyone violates such article, this person cannot serve as a security guard; therefore, the security company’s request for Xiao-Ming to provide such data in accordance with the Private Security Service Act was to meet the purpose of public interest, which did not violate the relevant provisions of the Employment Service Act.
If any employer is found in violation of relevant regulations for employment privacy, the employee can report to the local competent authority. If it has been confirmed after investigation by the authority in violation of the provisions of Subparagraph 2, Paragraph 2, Article 5 of the Employment Service Act, the party concerned will be fined NTD60,000 - 300,000 in accordance with Article 67 of the Employment Service Act.
To prevent an employer from arbitrarily asking job seekers or employees to surrender personal privacy information, when Article 5 of Employment Service Act was amended in 2012, it was added that “When recruiting or employing employee(s), the employer shall not request the job seekers or employees to surrender personal documents unrelated to the employment concerned against his/her free will”, and when Article 1 of the Enforcement Rules of Employment Service Act was amended in 2013, the scope of “privacy data” and the requirements for being “related to the employment” were clearly defined. With the categories of “private data” and the requirements for being “related to the employment” under the Employment Service Act, when filling out resumes or answering questions in interviews, and what questions do not need to be answered, the job seekers will have standards to follow; the employers will also have standards regarding what questions they can ask, or ask questions based on the necessary scope of the specific purposes of the economic demands or public interest protection to find appropriate talents. Thus, the employers and job seekers or employees can all find themselves adaptive in employment and development under an independent and equal relationship.