A Study on the Protection of Job Applicants’ Informational Privacy

• Main Authors: Jan, Day Rong, 詹岱蓉
• Other Authors: Liu, Ting Chi
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/35147295904814645226

碩士 === 國立政治大學 === 法律學系 === 104 === In the hiring process, employers need to select workers cautiously in order to improve the productivity and efficiency of their enterprises, and to avoid the potential liability caused by reckless employees. To screen out the best possible candidate for a particular job, employers usually wish to gather as much information about job applicants as possible by making oral or written inquiries, or conducting different kinds of employment tests (such as personality tests). However, what kind of information can employers legally require job applicants to disclose? Do job applicants have no choice but to relinquish their personal privacy if they want to be employed? To answer these questions, we need to carefully balance the competing interests between employers and job applicants. In Taiwan, “Personal Information Protection Act (PIPA)” and “Employment Service Act (ESA) §5II②” form the basic framework of protecting job applicants’ informational privacy. Employers need to obey specific provisions of the PIPA before they can collect job applicants’ information; and if private information is to be collected, employers should further confirm their collecting actions meet the “job-related” requirement specified by §5II② of the ESA. This legal framework seems simple and clear, but there are many questions remain to be answered. For example, what is the exact scope of the term “within the scope of job functions provided by laws and regulations” of the PIPA? Does the condition “quasi-contractual relationship between the Parties” specified in PIPA allow employers to contact third parties (such as job applicants’ former employers) and conduct a reference check? Further, since there is a serious power-imbalanced problem in the employment relationship, can we truly expect the job applicants to offer a free and valid consent when they are requested to provide their personal information? Last but not the least, what is the precise meaning of the term “job-related” of §5II② of the ESA? More studies and court judgments are needed to delineate the boundaries between what employers are entitled to know and what job applicants should be able to keep private. This thesis begins with analyzing why employers need/hope to gather information about job applicants and what screening tools they prefer to use. It then discusses job applicants’ concerns when they face employers’ inquiries or employment tests. By comparing relevant U.S. legislation and judicial decisions regarding the protection of job applicants’ informational privacy, this thesis examines the standards used in Taiwan’s case-law when balancing employers’ and job applicants’ interests. Special attentions are paid to the issue whether these standards are still appropriate or should be updated in light of the latest amendments to the PIPA and ESA. Finally, through concrete cases, this thesis tries to provide practical recommendations on how we can better protect job applicants’ privacy while respecting employers’ legitimate interests in knowing their future employees.