Much ado about applicant data tracking: What are the real rules?

Seeking out new employees isn't easy, and costs a chunk of resources to begin with - but what happens when it's all over for the applicants who may or may not have made it?

Ecovis employment lawyer Thorsten Walther in Nuremberg discusses the importance of data, data security, and how to treat candidates ethically long after the interviews are over.

Do you quickly send the documents of an applicant by e-mail to a colleague for a second opinion? Post the notes from the interview or look for the candidate on the social media? This is often the case in everyday life, but is it compatible with current requirements for data protection?

What bosses know and ask

Companies may process personal data of applicants, and applicants agree to this when sending their documents. The data include name, address, professional experience or previous activities. Even though employers want to know as much as possible about applicants, they are only allowed to gather the information they need to check their suitability. 

"Of course, employers also use social media to learn more about someone," reports Ecovis lawyer Thorsten Walther. "That's allowed, because this content is freely available."

Questions about pregnancy and severe disability, however, are absolutely taboo. "This violates the General Equal Treatment Act," says Walther.

When the employer must obtain the consent for data processing

If a jobseeker sends his application, then he agrees to the processing of his data. However, if an employer wants to build up a pool of applicants and pick up the data for a later date, the story is different: the applicant must agree to the retention of their data. 

"This is best done in writing or online applications for ticking," explains Walther. 

This approval is basically unlimited, but it is also revocable at any time.

Who might see application documents

Only candidates who have been hired and have a say in the selection may look through application documents. Submitting an application to obtain the opinion of an uninvolved colleague is not allowed. 

"Companies should therefore make it clear who is in on the decision-making. That should also be documented accordingly," says Walther.

Which retention periods apply

If an employment contract concludes, companies may store the data at least until the end of the contract. If, for example, there is a company pension plan, then you may also save the applicant data beyond the end of the contract. 

In the event that you do not hire an applicant, however, you should still keep their data for up to six months. If the employer is sued under the General Equal Treatment Act, "what happens in practice", says Thorsten Walther, must be catalogued and defensible. 

After the six-month deadline, companies must delete not only the candidate data, but also all notes from a job interview and internally forwarded by e-mail application.

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