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The Personal Information Protection Act, which came into force on 1 July 2021, is likely to affect job interviews from now on in South Africa, says Andre de Villiers, lawyer at Scheepers & Aucamp and member of HR Economics.
The law and how it will affect the questions that will be asked will mainly depend on two key factors, he said:
- Are interviews considered the processing of personal information of prospective employees or “data subjects” as stated in the law?
- Does data collected from prospective job seekers deserve protection under the law?
“The second question is perhaps the easier one to answer. The purpose of the law is indeed to protect personal information, and given that the questions and answers typically exchanged in interview processes are definitely personal information—such as race, gender, views, gender, and education—the interviewee certainly deserves the protection , provided by Act,” de Villiers said.
The answer to the first question – whether interview processes can be regarded as processing of personal information – can be found in the definition of processing as set out in the Act, which includes a number of actions normally carried out in interviews, such as collecting, obtaining , recording, storage, transmission, destruction of information, etc., he said.
What does this mean in practice?
Broadly speaking, all public and private bodies interviewing employees will have to comply with the provisions of the POPI Act during interview procedures, de Villiers said.
“In practice, this means that the interviewer will need to obtain informed consent from the interviewee when receiving, collecting and processing the personal information of potential job seekers.
“The hurdle you have to jump is the concept of informed consent. This means that authorities will have to declare how they will process the personal information received and obtain consent to process it (in these terms) and nothing else.
HR professionals, recruiters and public and private organizations – and any party that can be seen to be interfering with the protection of personal information – now have a heavy burden on their shoulders during interview or recruitment procedures at work and could be sued if found to be non-compliant, face huge fines from the regulator itself or even jail time, de Villiers said.
In terms of section 10 of the Act, employers are asked to receive only strictly relevant information. They will always remain accountable to the job seeker to explain what they have done with the data.
“Data about race, for example, can only be processed if it is essential to identify someone or where it is strictly applicable.”
“In general, the data collected should always be specific to the purpose. It is recommended that access to records of interview procedures be strictly limited to key personnel only after the interview procedure is completed and retained solely for the purposes of employment equity audits by the Department of Labor.
“So there are no more CVs sitting around in the office or in a database for an unforeseeable period for everyone to see,” he said.
In the consent form interviewees sign, it would be wise to inform them of this record-keeping obligation, de Villiers said. He said the interviewer would need to obtain consent before the information is processed by (or shared with) another person.
“All role players must ensure integrity, confidentiality and well-placed organizational measures, especially if information is to travel across borders.
“Aspects that interviewers should approach carefully when it comes to the job seeker include aspects regarding religious and philosophical beliefs, race, ethnic origin, union membership, political beliefs, health status or sexual orientation, criminal behavior, biometric information and etc.” de Villiers said.
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