The Employer's Obligations in the Recruitment Process
Bongsoo Jung, a Korean labor attorney at Kangnam Labor Law Firm
I. Introduction
Recruitment of workers is in principle the employer's prerogative, and for years there was no law to regulate it. While the employment documents and recruitment review costs required by employers when hiring employees are a great burden to job seekers, there have been rare instances where the employer has returned the employment documents voluntarily or has returned them when requested by the job seeker. In addition, there have been irregularities in the recruitment process, such as retaining business suggestions of job seekers, and posting false recruitment advertisements for the purpose of promoting companies. As a result, the Act on the Fairness of the Recruitment Procedures (hereinafter referred to as the "Recruitment Procedure Act" or “the RPA”) was enacted in 2014, and employers who ordinarily employ more than 30 workers fall under this Act, which limits their rights in the recruitment process (Article 3).
Numerous recruiting scandals have occurred recently in both public and private companies, and so a need was perceived for systematic supplementation in order to guarantee the fairness of the recruitment process. On July 17, 2019, the Recruitment Procedure Act was partially amended and implemented. The RPA prohibits anyone from illegally asking, pressuring, or forcing hiring practices in violation of the law (Article 4-2, Paragraph 1), and also prohibits the act of giving or receiving goods, entertainment, or property regarding recruitment (Article 402, Paragraph 2). In addition, a penal clause (Article 17) has been newly-established in case of violation, which implements effective sanctions measures.
In this article, I will look closely at how strictly unfair employment practices can be sanctioned and the employers’ obligations in the process of hiring. This should help you understand the employer's obligations in the recruitment process.
II. Sanctions on Unfair Practices in Hiring Procedures
1. Prohibition of false advertising (Article 4 of the Act)
Employers shall not put out a false recruitment advertisement for purposes such as collecting ideas or publicizing the workplace under the pretense of recruitment. Any employer who puts out a false recruitment advertisement in violation of this Act shall be punished by imprisonment of up to five years or a fine not exceeding KRW 20 million (Article 16 of the Act). This Article was designed to protect the interests of job applicants and to prevent the occurrence of social costs and damages.
In addition, the employer shall not change the recruitment advertisement adversely to the job seeker without justifiable reason, or adversely change the working conditions presented in the recruitment advertisement without justifiable reason after employing the job seeker. The employer shall not force the applicant to assign his ownership of intellectual property rights such as employment documents and related papers. In violation of this, the employer will be charged a fine of up to KRW 5 million (Article 17).
This implies that a change in the type of job, type of employment and/or working conditions proposed in the recruitment advertisement by the employer violates the principle of good faith, and shall not be allowed in consideration of the need to protect the trust of jobseekers in the job announcement. The prohibition against changing the working conditions as presented in the recruitment advertisement is intended to protect the interests of the job seeker by prohibiting an unfavorable change of working conditions, considering the fact that the job seeker is inferior to the employer. In addition, the copyright and intellectual property rights of the jobseekers are protected by related laws such as the "Copyright Act" and "Intellectual Property Basic Law", but because of the lack of substantive protection, the introduction of such restrictions in the Recruitment Procedure Act will enlarge the scope of direct protection.
2. Prohibition of unfair recruiting (Article 4-2 of the Act)
Whether or not an employer hires a particular individual is the employer's own prerogative, and needs to be respected. However, if employees are being hired through open competition rather than individual recruitment, they should be given fair competition opportunities based on the job announcement. The revised Law on Recruitment Procedures enacted in July 2019 is intended to prevent unfair employment practices and to prevent actions such as unfair requests, oppression and force that hinder sound employment and the social order; this Act also prohibits the offering or receiving of money or goods. In case of violation, it imposes a fine of up to KRW 30 million.
Although the existing penalties for unfair employment apply to business obstruction of the Criminal Law, there are limits to the application for criminal offenses. Therefore, the Recruitment Procedure Act introduced this new content and can now punish unfair recruitment practices as a labor law. In order to establish a business obstruction in Article 314 of the Criminal Act in the case of unfair recruitment, it is necessary to have an illegal act in the form of hierarchy or power information-processing, and the action must interfere with human affairs; that is, the work of others. However, there is a legal limit applying this Criminal Act because the person who engages in illegal recruitment is usually the decision-maker of the company, and the recruitment work corresponds to his original work and does not correspond to the 'other person's work'. Therefore, it is meaningful that we can now partially supplement the vacancy in the punishment of unfair recruitment practices in the Criminal Act by introducing the prohibition of unfair recruitment practices in the Recruitment Procedure Act.
3. Prohibition of requesting personal information that is not relevant to the job (Article 4-3 of the Act)
The employer is not allowed to require that the applicant include personal information in the Basic Recruitment Form that is not required for the performance of his/her job, or to collect it as evidence material. Such restricted personal information shall be collected and processed only in accordance with the following conditions: (i) the physical condition of the applicant's appearance, height, weight, etc., (ii) the area of origin of the applicant, marital status and property; (iii) education, occupation, and property. In case of violation, a penalty of up to KRW 5 million will be imposed. However, in the legislative process, the attachment of an identification photo to the employment documents was excluded from the collection restrictions. The reason for this is that ID photos are considered a necessary part of the applicant's identity verification in both the recruitment review and the interview.
4. Prohibition of jobseekers paying for recruitment review (Article 9 of the Act)
The employer shall not incur any monetary cost (recruitment review fee) for the job seeker other than the cost of submitting the job application document to the applicant. However, if there is an unavoidable circumstance due to the specific nature of the workplace or occupation, it may be approved by the Minister of Employment and Labor to have a job seeker pay a portion of the recruitment review fee. In case of violation of this, a penalty of up to KRW 3 million is imposed.
Here, the recruitment review costs are directly related to the recruitment, such as the cost of planning and preparing the recruitment, the cost of the recruitment ad, etc., and the cost of recruiting applicants, which refers to any indirect costs. The employer shall be fully liable for this cost in accordance with the principle of beneficiary burden.
III. The Employer’s Obligation in the Recruitment Process
1. Notification obligations
The employer has a total of four notice obligations to job seekers. They should be notified that the recruitment documents have been properly received, that the recruitment schedule and procedures are on-going, the recruitment status, and the right of failed applicants to have their documents returned. Notification methods include posting on a homepage, text transmission by mobile phone, e-mail, fax, and telephone, without delay for the relevant matters in the recruitment procedure.
①Notice at the stage of receiving application documents: The acceptance of application documents (Article 7, Clause 2 of the Act);
②Notice of the stage of the recruitment process: recruitment schedule and recruitment process (Article 8);
③Notice of the stage of recruiting: whether to be hired or not (Article 10);
④Notice after employment status is confirmed: return of employment documents, etc. (Article 11, Paragraph 6).
2. Obligation to return documents (Articles 11 and 17, Paragraph 3)
Since the employer requires various types of qualifications and proofs when recruiting workers, to identify a job seeker’s ability , job seekers are required to pay an average of KRW 150,000 per application, and so the average cost for a job seeker to get a job is KRW 449,500 (when applying 29 times). If a job seeker receives a return of the employment documents, the cost of finding a job can be reduced.
If a job seeker whose final recruitment is refused requests the company to return recruitment documents, the employer shall send or deliver the recruitment documents to the jobseeker within 14 days from the date on which the jobseeker requested the return, after confirming the job seeker’s identification. However, the company shall not be obliged to return any documents submitted through the homepage or e-mail or documents which were voluntarily submitted by the applicant without the employer's request. To be prepared for the request for return by a job seeker, the employer shall keep the employment documents for a period determined by the company within 180 days after 14 days from the date of failed employment of the job seeker, and notify the job seeker of the period of retention. In principle, the cost of returning the employment documents is borne by the employer. However, the job seeker may be liable to pay expenses to receive the documents according to the individual application. If the company does not fulfill its obligation to retain the employment documents, or if the company does not notify the job seeker, the employer will be subject to a penalty of up to KRW 3 million.
3. Storing and deleting documents
The employer shall keep the employment documents for the period prescribed by Presidential Decree. However, the employer shall be deemed to have fulfilled the obligation to return the employment documents if the employment documents are lost due to natural disaster or other reasons not caused by the employer (Article 11 (3)). The retention period is from the date of recruitment application to the date of request for the return of documents, or when requested for return of the documents, the employer must send the documents by the special delivery service of the postal office (Article 3 of the Enforcement Decree of the Act).
The employment documents contain the personal information of the job seeker, and as the need for privacy is paramount, the documents should be destroyed after a certain period of time. If the requesting period of return expires or if the employment documents are not returned, the employment documents must be destroyed in accordance with the "Personal Information Protection Act" (Article 11, Paragraph 4). In this case, the destruction of the employment documents should be made without delay (within 5 days) as stated in the Personal Information Protection Act. The method of destroying personal information is as follows: ① For electronic files: permanent deletion in a way that cannot be restored; ② For recorded, printed, written or other recording mediums: crushed or incinerated (Article 16 of the Enforcement Decree of the Personal Information Protection Act).
IV. Conclusion
Since in the past there were no restrictions on the employer's right to employ workers, employers have sometimes abused their right in the course of hiring workers, which has caused high costs of recruitment for job seekers and even led to frequent recruitment irregularities. In this regard, the Recruitment Procedure Act will contribute to the restriction of the abuse by the employer in the recruitment process, reduce the job seeking expenses of the job seeker, and establish fair recruitment procedures. However, since there is a lack of social awareness or publicity regarding the Recruitment Procedure Act, it is generally accepted and recognized that job seekers cannot always be protected in reality. Therefore, it is desired that strict enforcement of the Recruitment Procedure Act is very much necessary in order to restrict some of the previously-unlimited rights of the employer and ensure the rights of job seekers.
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