New Issues in 2015 on Hiring Procedures

Game Company A, which canceled its recruitment last year due to the economic recession, recently decided to hire new personnel in the first half of this year. The HR manager has heard that the last year’s recruitment advertisement cannot be used according to new labor law on hiring procedure. The manager decided to insert a new phrase “the rejected hiring documents can be returned to the applicant upon request” into the recruitment advertisement. Under the new labor law on recruitment, what are issues and how to deal with them?

Application documents as ‘personal information’

Amid recently increasing awareness of privacy and personal information rights, the hiring procedure has become much more complicated than before. In choosing competent personnel for employment, companies have no choice but to require job seekers to provide personal data such as their resume, a cover letter, degrees, and language test scores, etc. Hence, companies need to take appropriate measures to prevent personal information from leaking during the hiring process.

In 2011, the law on personal information was enacted to stipulate rules and principles on how to deal with personal information, in the form of the Personal Information Protection Act (PIPA). According to PIPA, companies are required to take additional steps in processing personal information such as requiring that a minimum of personal information be requested so as to prevent excessive collection of data during the hiring process; obtaining consent from job seekers to collect and use their personal information; and bearing responsibility for legal disputes. Also, it is in principle forbidden to collect and process sensitive personal information such as personal identification number (i.e. resident registration number), opinions/beliefs, and health information. Companies need to review their current hiring procedures to ensure they are in line with PIPA requirements.

[Table 1] Enforcement of the Fair Hiring Procedure Act

Application document as a ‘way’ to express ideas

On top of this, a recently enacted law, the Fair Hiring Procedure Act (FHPA), imposes additional obligation on companies (job “offerers”) to ensure fairness in recruitment as well as protecting applicant rights to their ideas and documents. The FHPA is scheduled to come into effect on a gradual basis according to business size, starting on 1 January 2015. According to the FHPA, companies cannot put out false job advertisements designed to gather ideas or publicize the work place, and should notify job seekers of the hiring procedure, hiring schedule, any delays in screening and inform applicants through the company website or email, who has been hired.

Also, according to the FHPA, companies should not require money from job seekers other than expenses incurred in submitting their documents. If this is unavoidable, part of the screening costs may be levied against the job seeker with the approval of the head of a local employment and labor office. There are specific regulations on company obligations in the overall hiring procedures. For example, companies need to inform job-seekers of the deadline to request return of submitted documents, which must be returned within 14 days of any request to do so before the deadline.

“Submitted documents are neither returned nor used for any other purpose whatsoever except for hiring”

If companies do not revise their job advertisements, what kind of consequences can be expected?

First, according to the FHPA, a company should seek to receive applicant documents by electronic means such as through a website or via e-mail, negating the need to return the document. However, if a company receives non-electronic documents (such as via mail) these need to be returned directly to the applicant or through registered mail within 14 days upon request and after hiring has concluded. The cost of returning the documents should not, in principle, be the responsibility of the applicant. Companies who fail to comply with this obligation to return submitted documents will be punished with a fine for negligence not exceeding 3 million won, which is a considerably strict way to pressure companies to protect applicant rights.

In addition to this, the FHPA stipulates that companies should inform job seekers of the deadline for requesting the return of their documents before employment has been decided, to ensure the job seeker has adequate opportunity to exercise his/her rights. However, there is some flexibility in this obligation according to size of company or other situation. The Enforcement Decree of the FHPA provides that “the period of request for return of submitted documents shall be the period determined by the potential employer within a range of 14 to 180 days after the date on which the decision was made whether to hire the job seeker or not.” This provision takes into account the fact that normally large companies conclude their hiring processes within 7 days after final notification of hiring decisions, with possibility of additional hiring, while SMEs usually take about 3 months due to many applicants merely submitting their applications to SMEs in case newly recruited employees decide to quit shortly after the recruitment process.

Does every submitted document have to be returned to the job seeker?

 According to the FHPA, a potential employer does not have to return submitted documents received through a website or via e-mail or where the job seeker submitted the documents without prior notification of job openings by the potential employer. This regulation on the potential employer’s obligation to return submitted documents to the job seeker aims to protect job seeker’s right. That is, if a job seeker submitted his/her documents through a website or via e-mail, he/she likely has the original document and does not need to have the original re-issued if it is not returned. However, this provision does not mean that a potential employer is allowed to dispose of the documents at his/her discretion. Even though the FHPA does not regulate handling of documents from rejected employee candidates, such documents should in principle be disposed of according to PIPA requirements.

As employment has been emerging as the most important social issue, regulations to ensure fairness in hiring procedures are increasing, and people are more concerned about protecting their rights. Under these circumstances, companies need to keep an eye on trends in regulation and take appropriate action to prevent potential problems.