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Privacy expectation by employer and employee Employment Safety will be protected

     From the study of the accounts of complaints on the issue of employment privacy, it shows that more than a few large famous business entities still request the job-seeker for information regarding their height, weight, marital status, the number of children, genetic disorders, drug addictions, medication usage, criminal record, credit history, financial status or family member’s data, during the job application process. During the course of interviews, questions like whether or not the job-seeker has a boyfriend, any marriage plans, drug usage or being disabled are asked. The contents of the questions are involved with employee’s personal private information. These kinds of questions are invasive of the job-seeker’s privacy, and the problems are caused by the improper use of personal information.

  • The topics of private information that is prohibited to be collected
In accordance with article 1-1 of the Enforcement Rules of Employment Service Law (ERESL), the topics of “Employment privacy” are regulated as follows:
  1. Physiological information: including taking genetic test, drug tests, medical treatment tests, HIV tests, intelligence quotient tests and fingerprints and etc.
  2. Psychological information: psychiatric tests, loyalty tests and polygraph tests and etc.
  3. Personal life style information: credit history, criminal records, pregnancy plans and background checks.
  • Only for the job-related and consistent with needs of the business
The employers have to understand not only what topics are stipulated as private information but are able to define “job-related” as well.
The stipulations of “job-related” are as follows:
1. Rights of the job-seekers and employees shall be concerned when their private information is asked.
2. The scope is based on the economic demands or interest of the protection of the public.
3. A proper correlation with the condition of employment is required.
In the future when the employer is inquiring of the employees their personal information, the employer will be able to know what questions can be asked and what can’t, so the requests are in accordance with the job needed. It means that during the interview process, the questions shall refer to the requested competence and qualification for the job vacancy, and the rights and interests of the job-seeker shall be respected. The employer can’t pressure the job applicant to answer questions unrelated to the job, otherwise the employer would be in violation of the law.
  • Examples of employment privacy
Case 1:
Hsiao Ming had an interview at “A” technology company for a vacant human resources position. She was asked to fill in the application form, in which she was asked whether she has any genetic diseases, takes medicine, is a drug addict or has a criminal record. She was also asked to write about her credit history and financial status.

Hsiao Ming had thought that the above information had nothing to do with her job interview, so she left them blank. However the interviewer told her that the information inquired about are standardized questions. She was asked to fill in the missing related information, but she didn’t receive an explanation as to why the information was needed.

As for this case, the genetic diseases, drug addictions and medication usage are categorized under obligatory physiologic information for the issue of employment privacy. The criminal history, credit record and financial status are categorized under obligatory personal life style information for the issue of employment privacy.

If the employer intends to collect the said information, he or she shall clarify how the information is related to the job vacancy. Is the information related to the specialization or the economics of the job vacancy?

The employer is supposed to show that the practice is for the purpose of public interest and consistent with the needs of the business, and there is no improper correlation, otherwise he or she will be in violation of article 5, section 2, Item 2, of the Employment Service Law (ESL), and will be fined from NT$60,000 to NT$300,000, according to article 67, section 1 of the Act.
Case 2 :
Hsiao Min applied for a food handling position at Fushing Catering Services. When interviewed and when offered the job, he was asked to submit a qualifying physical examination certificate from a medical institution. Hsiao Min thought that it was related to his personal privacy. Could he refuse to present it? Was the employer in violation of the law?

The checkup record from the medical institution requested by the Fushing Catering Services refers to the issue of physiological information of employment privacy. According to the “The Regulations on Good Hygiene practice for Food” and the “Sanitary control in the food industry law”, the employees of the food industry shall meet the following criteria:

The new employee is expected to have a checkup by a medical institute and get the qualification certificate before being employed. The company asked Hsiao Min to show the physical examination certificate from a medical institute for the purpose of public interest, so the company has not violated the related regulations of the Act.

For any employer found in violation of the regulations of employment privacy, he or she will be investigated after a complaint is filed with the local competent authority. Provided that the violation is verified and is against article 5, section 2, item 2, the employer will be fined from NT$60,000 to NT$300,000, according to article 67 of the Act.

For the purpose of helping the employer to avoid from arbitrarily requesting the job-seeker or employee from providing the confidential information, article 5 of the ESA was amended in 2012. When recruiting or employing the employee, the employer shall not engage in demanding any confidential information unrelated to the need of the position with or without the permission of job-seekers or employees. In 2013 article 1 of the ERESL was amended, where the scope of “personal information” and the scope of the “needs of position” are clarified.

Since the ESA has regulated the scope of “personal information” and “needs of position”, the job-seeker can be in compliance with the standardized questions when asked to fill in an application form or interviewed. The employee can also have a standard to follow and know what kind of inquiries made is dealing with the public interest and what is beyond the necessary scope. Consequently, with the respect to the private information, the employers, the job-seekers and the employees will be developing and working together in a free and fair relationship.