Recently, the government announced a decision to implement a blind recruitment system. Under the new recruitment system, in order to prevent discrimination, companies are banned from requiring job candidates to provide information about their academic and family backgrounds, place of birth, physical conditions, and other personal details. In addition, beginning this year, the Fair Hiring Procedure Act, which is about an employer’s obligations during the hiring procedure, is expanded to apply to workplaces with 30 employees or more.
Similarly, tougher regulations on hiring procedures are being implemented to ensure a fair hiring process and to protect applicants’ personal information and rights. It is important for business to check the regulations on recruitment and on what information CEOs need to know.
Blind hiring in the public sector and recommendations for private companies
Since the second half of this year, blind recruitment has become mandatory in the public sector (e.g. government, public, and local public enterprise institutions). These organizations are not allowed to require employment applicants to provide information on their educational background, place of birth, family circumstances, and physical conditions on applications forms and at job interviews. This aims to remove any items that may cause bias against applicants and to promote a fair and reliable assessment of an applicant’s competencies. However, if certain physical condition, academic backgrounds, etc., are deemed necessary to perform the duties of the job, the employers are granted an exception to ask for the necessary information.
Employers need to be prepared to avoid any violation of relevant laws in the process of hiring. The government has distributed the ‘blind hiring guidelines’ to provide information about details. According to the blind recruitment system, there will be new job application forms, consisting only of job-related questions such as education, training, qualifications, and experience. Furthermore, job interviews must focus on candidates’ competency as assessed from presentations and group discussion. The government is also making efforts to promote blind hiring in the private sector. The most recent plan is to develop a guidebook and to revise the current Fair Hiring Procedure Act in order to prohibit employers from asking about any data such as applicants’ physical conditions, family, financial situation, religion, marital status, etc. In line with the government’s plan, several revision bills have been presented to the National Assembly.
‘Personal Information Protection Act’ and ‘Fair Hiring Procedure Act’
When hiring employees, companies routinely require applicants to provide information in the form of an application form, a cover letter, a degree certificate, and a foreign language proficiency certificate. The Personal Information Protection Act, which is about the collection and use of personal information, was enacted in 2011 to deal with the dissemination of this information.
In principle, companies should collect and use personal information only to the minimum extent necessary for hiring employees. The scope of necessary information can be adjusted depending on the type of job. For example, an applicant’s ID and contact information such as name, phone number, and address is almost invariably necessary information, however; academic background and certification of qualification may be not needed.
When hiring employees through a recruitment agency or based on an application form which is randomly found on internet, companies need to modify their materials to ensure that they collect only the necessary information. When collecting information besides that, companies must obtain consent.
In principle, it is prohibited to collect or use ID information (resident registration number, etc.) and other sensitive information (religion, union membership, political opinions, etc.); however, if that type of information is deemed absolutely necessary for recruitment, a company may be allowed an exception to ask the necessary questions, as long as consent is obtained from the applicant. After the hiring period ends, companies are required to destroy personal information within five business days. If an unselected applicant’s personal information is to be kept for recruitment purposes, companies must obtain consent from the applicant for the storage and can use of his/her personal information for the specified period.
According to the Fair Hiring Procedure Act, employers are also prohibited from placing false hiring advertisements for the purposes of collecting ideas or promoting a business site by pretending to hire workers. Also, employers should not change the contents of a hiring advertisement to make it unfavorable for particular job seekers without having justifiable grounds.
In addition, employers should let job seekers know the period of request for return of hiring documents in the hiring advertisement, and the employer who has received a request for a return of the hiring document from a job seeker shall send the relevant document within 14 days. Regarding hiring documents that applicants have submitted voluntarily or are sent electronically, companies do not have any obligation to return them. Therefore, it is recommended to receive hiring documents via e-mail or a website interface.
If companies have received hiring documents electronically, they are required to acknowledge receipt of the documents, as well as providing a recruitment schedule and information about the hiring procedures. In particular, as any discrimination based on gender, marital status and age is prohibited throughout the hiring procedure, employers should not request job seekers to provide such possible discriminatory factors.
Checkpoints for hiring procedures such as a labor contract
After the hiring process is completed, a labor contract should be signed by an employer and the employee. In the labor contract, an employer must clearly state working conditions such as wages (total amount of the wages, constituent item of the wage, methods of wage calculation and payment), place of work, job assignment and procedures, etc. The labor contract should be put in the written form and delivered to the employee.
In order to change the working conditions as stated in the labor contract, the employer must obtain consent from employees.
Additionally, it is recommended that an employer should prepare a register of employees which includes name, gender, date of birth, address, personal history, job assignment, and the date of signing/renewing labor contract. Also, the employer should preserve other important documents related to the labor contract for three years, including the written labor contract; the payroll contract; documentation regarding the method of determination /calculation/payment of wage; and information regarding hiring, dismissal and retirement, holidays, etc.)
Every company wants to hire competent employees, however; it is not easy to find them. It is difficult to terminate an employment relationship with underperforming or mismatched employees because of the strict regulations regarding dismissal from employment in Korea.
As a preventive measure, a company can utilize a probation system. During the probationary period, an employer can evaluate employees’ vocational aptitude and performance to decide whether the employment relationship should continue or not. According to a court precedent, labor relations during a probationary period are relations in which the right to terminate it is reserved, and the reasons to terminate employment during a probationary period are more ‘understandable,’which is less strict than ‘justifiable’ reasons stipulated in the Labor Standards Act article 23.
To use probationary workers, there must be clear statement regarding the probation system in the employment rules or in the labor contract; and the worker’s employment status should be made known when the employee joins the company and before they are asked to sign a formal and definitive employment contract. Therefore, it is advised that companies clearly state the terms of probation for newly-hired employees in the employment rules or in the labor contract. It should also be made clear that the probationary period includes the right of the employer to terminate the labor contract at will and clear standards of performance assessment should be delineated during that period.
The government is pushing ahead with strong employment policies regarding job creation, fair hiring based on competency, and basic employment order, and the government will be monitoring whether companies comply with their new legal obligation closely. Therefore, it is advised that companies check into their overall hiring processes and make changes as needed.