Legal Rights To Know During the Hiring Process

Edvinas Kazlauskas / Posted On: 29 April 2022 / Updated On: 24 September 2022 / Guest Post / 140

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Legal Rights To Know During the Hiring Process



There are plenty of things to know about the hiring process, and this refers to both sides of it. Every day, the rules and regulations in regard to employment, data processing, and working change around the world.

 

Whether you are an employer looking to hire new workers or a job seeker looking for a new job, you need to carefully enter this process knowing the legalities that come with it.

 

Every employee, potential or already hired, has legal rights. They cannot be discriminated against based on different factors, and employers must take the necessary measures to comply with the regulations as set by their country’s laws.

 

That being said, this article will tell you about the legal rights that applicants enjoy before they are hired for the position in question.


Data subject rights

When businesses need to hire new people to fill empty positions, they create job postings and use a variety of strategies for talent sourcing. But, during the sourcing process, these companies collect tons of data for different applicants. That data is subject to certain laws and regulations that must be respected to keep it safe and keep the organization out of legal trouble.

 

When collecting data from applicants, you need to be well aware of the data subject rights to comply with. People share all kinds of information with companies they wish to work with. They share their contact and location details, their entire educational background, their work experience, etc.

 

It’s only natural that the companies that collect this data can use it to make the hiring decision, but sharing it with others is most certainly out of the question.

 

That’s what data subject rights are all about. But, how do you know what you can and cannot do?

 

Read Osano’s GDPR guide to learn more

If you want to learn about the rights of people that share their data with you, Osano’s GDPR guide can help you with this. Osano is a tool that companies use to make sure they comply with the GDPR and don’t have legal issues after obtaining people’s data.

 

GDPR guide

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The GDPR guide lists the following rights that employers must respect when handling job applicants’ information:

  • Every person whose personal data is collected and used has the right to be informed of it no later than 30 days in an easily accessible form. 
  • Job applicants have the right to access their personal data after sharing it with you, and the right to know how it’s processed. This request is called the Data Subject Access Request. 
  • They can request rectification of incomplete or inaccurate data, in writing or verbally.
  • Any data subject whose personal data you possess has the right to request that you erase it within 30 days. Many companies today prefer to keep applications handy in case they need new workers in the future, but if the candidate in question requires that you erase it, you must do it based on the rules and regulations.
  • Job applicants can also restrict the processing of their personal data, which doesn’t necessarily mean that you cannot store it, but it means that you have to stop processing it. 

 

These make for only a small portion of the regulations as set by the GDPR. Another thing that you should be aware of is that, even if your company doesn’t operate within the European Union, you still need to comply with these regulations if you collect data from people in it. 

 

For example, if you are looking to remotely hire people based there, you need to be well aware of your country’s regulations, as well as comply with these when collecting and storing their data. 

 

Protected characteristics of interview questions

Did you know that employers are limited in terms of what questions they can ask during an interview? Even though there are questions that are forbidden during the hiring process, many employers and employees aren’t aware of them, so they are often asked and answered. 

 

If you want to avoid problems as well as avoid discrimination, you need to know the types of questions that should not be asked during interviews. 

 

Generally speaking, interviewers should avoid asking the following questions, or consider rephrasing them:

  • Whether the job applicant intends to have children
  • About the applicant’s marital status
  • About the applicant’s religion, race, or sexual preference
  • Questions about the applicant’s age (you can ask whether the applicant can legally work, though i.e. whether they are over the age of 18)
  • About any disabilities, they suffer from
  • About the citizenship status of the applicant

 

Characteristics such as the person’s medical history, age, origin, and race are regarded as protected characteristics under most countries’ rules and regulations. These characteristics have been used as a basis for unlawful discrimination and as such, they are restricted from being used in the hiring process.

 

job interview

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If you do ask such questions, the candidates can legally refuse to answer, and that cannot be used as a ground for denying them the employment opportunity.

 

Still, such questions are permitted and even required in some cases. For example, employers may ask about disabilities and health history if the job in question requires great stamina and a person in excellent physical shape. 

 

If you want to learn how to obtain such information without breaking discrimination laws, Yale’s interview question guide has good examples for this.

 

Other questions that employers shouldn’t ask

It seems quite reasonable that you cannot ask the previous questions during an interview because, in most cases, they sound discriminatory and are not very relevant to the hiring process.

 

Apart from the protected characteristics questions, there are some other questions that employers cannot ask during the hiring process. 

 

For starters, there’s the question of compensation or payment history. 

 

Many of the laws in the world make it illegal for employers to base their employment decisions on pay history. Employers cannot consider this as a factor in deciding about their compensation for the employee, either. 

 

This is restricted based on the equal pay laws around the world. Such laws were put in place to close the pay gap caused by discrimination due to sex, race, gender, or nationality. If you ask about pay history, this can reinforce the wage gap since most employers won’t want to pay workers a lot more than they’ve been earning previously.

 

Sometimes, job applicants decide to share this information voluntarily to boost their odds of getting higher pay. Only in such cases can employers consider the information and base their decision on it. 

 

Another question that is forbidden to ask in many places around the world is about the candidate’s criminal record and/or past conviction history. Such questions are prohibited from application forms and even in oral interviews. 

 

People with a past conviction are considered to have paid their due, and they are supposed to have a fair chance at good employment opportunities. Many regulations prohibit such questions to make sure that all applicants are considered based on their qualifications and fairly.

 

There are cases where such questions are allowed, though. For example, if the job position is in a state or local agency that is legally required to conduct a criminal background check, employers can ask such a question. People employed at criminal justice agencies must also provide such information. Finally, jobs where state, federal, or local laws require such checks and restrict employment opportunities based on criminal history, also allow for such questions during the hiring process.

 

Employer’s responsibilities during the hiring process

When an employer chooses the person to hire for a specific position, they need to complete some responsibilities to legally hire the person. These include: 

  • Register with the State Department to establish an unemployment compensation tax for the applicant
  • Purchase a Federal Employer Identification Number from the new employee
  • Arrange the pay system of the employee to withhold tax
  • Help the new employees register for benefits
  • Obtain compensation insurance for the worker
  • Formulate a Disease and Prevention Plan for the OSHA (Occupational Safety and Health Administration)
  • Report on unemployment tax to the IRS

 

taxation officer

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These responsibilities can vary from one country to another one but, either way, employers have to comply with the regulations before their new workers start at the position they were given.

 

During this process, any false promise or statement given to new workers may result in a violation of the agreement provided for by law. 

 

Let’s say, for example, that the employer really likes the job candidate and promises them a job for life or a ‘position where they can get a higher salary every month’. If this is the case, the employee can legally require a higher salary or sue the employer if they breach the implied contract and fire them soon after the process.

 

Comply with the regulations to avoid legal issues

What does this tell you? Many employers today are unaware of such regulations and rules. Not complying with them can get you in a lot of trouble, and not just legally. Word of mouth is a fierce thing that can kill your business, too. If you don’t treat people fairly during the hiring process, your brand can lose its reputation and you’ll lose many great potential candidates in the future. 


Edvinas Kazlauskas
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