The General Data Protection Regulation (GDPR) is a new set of rules governing the data privacy of people in the EU, which can affect recruiters working around the world.
These new rules go into effect on 25th May, 2018, and because the recruiting industry relies heavily on personal data, many recruiting firms and individual recruiters will be affected by GDPR, no matter where in the world they operate.
The fines for violating the terms of GDPR are formidable, so recruiters need to understand how they may be affected by the new rules and the steps they need to take to be GDPR compliant.
What is GDPR?
Essentially, the terms of GDPR mean that if you use the personal data of an EU ‘data subject’ without their permission, then you will be hit with a massive fine, even if you are doing business across the globe.
GDPR also outlines new rules for ‘data controllers’ and ‘data processors’ who use the personal data of EU ‘data subjects’, (any person within the borders of the 28 countries in the EU), and require new conditions to be met for data security, transparency and obtaining the consent of data subjects before using their data.
If you aren’t sure what constitutes ‘personal data’, or what a ‘data controller’ or a ‘data processor’ are, we’ve collected a glossary of GDPR terms for you and useful information from the GDPR website’s FAQs.
Data Controller vs. Data Processor:
“A controller is the entity that determines the purposes, conditions and means of the processing of personal data, while the processor is an entity which processes personal data on behalf of the controller.”
This definition is short, but it can be tricky to apply to recruiting.
The data controller is the person or organisation who decides to use personal data for a business purpose, for example, a recruiting firm that wants to use the personal data of healthcare professionals as a business asset.
Continuing this example, the data processors would be the internal employees and/or contracted individuals and organisations that use this data for recruiting operations.
Here are three more examples of who is considered the controller or the processor in some common recruiting scenarios:
1. When a client company provides a recruiter with access to their internal candidate database, the client is the data controller and the recruiter is the data processor.
2. When a recruiting agency gives their recruiters access to a candidate database, the recruiting agency is the data controller and the recruiters using this database are data processors.
3. When an independent recruiter wants to present the personal information of a candidate to a client, they are the data controller and the data processor.
Personal Data:
“Any information related to a natural person or ‘Data Subject’, that can be used to directly or indirectly identify the person. It can be anything from a name, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer IP address.”
Personal data protection under GDPR extends to every person within the borders of a country in the EU, whether they are a citizen or not, but does not extend to people outside the borders of EU countries, even if they are EU citizens.
The definition of personal data differs between different countries in the EU, so you should always check the definition of personal data for the country in question.
Data subjects also have Data Rights, which must not be infringed upon by a data controller or a data processor:
● Breach Notification:
“Breach notification will become mandatory in all member states where a data breach is likely to ‘result in a risk for the rights and freedoms of individuals’. This must be done within 72 hours of first having become aware of the breach. Data processors will also be required to notify their customers, the controllers, ‘without undue delay’ after first becoming aware of a data breach.”
● Right to Access:
“The right for data subjects to obtain from the data controller confirmation as to whether or not personal data concerning them is being processed, where and for what purpose. Further, the controller shall provide a copy of the personal data, free of charge, in an electronic format.”
● Right to be Forgotten:
“The right to be forgotten entitles the data subject to have the data controller erase his/her personal data, cease further dissemination of the data, and potentially have third parties halt processing of the data. The conditions for erasure, as outlined in article 17, include the data no longer being relevant to original purposes for processing, or a data subjects.”
● Data Portability:
“The right for a data subject to receive the personal data concerning them, which they have previously provided in a 'commonly use and machine-readable format' and have the right to transmit that data to another controller.”
● Privacy by Design:
"At its core, privacy by design calls for the inclusion of data protection from the onset of the designing of systems, rather than an addition. More specifically - 'The controller shall...implement appropriate technical and organisational measures...in an effective way... in order to meet the requirements of this Regulation and protect the rights of data subjects'. Article 23 calls for controllers to hold and process only the data absolutely necessary for the completion of its duties (data minimisation), as well as limiting the access to personal data to those needing to act out the processing.”
That’s a lot of info to take in, so here’s a summary of what data rights mean for recruiters:
- Violating any of a data subject’s data rights are a breach of GDPR and result in large fines.
- The personal data of an EU data subject cannot be used without their explicit consent collected in compliance with GDPR. Terms of consent must be presented in ‘clear and plain language’ and state the intended use for a data subject’s personal data. This includes use by automated processes.
- You will be required to provide a breach notification to the supervisory authority overseeing the data rights of potentially affected EU data subjects if your security is breached and you possess the personal data of EU data subjects. This notification must be provided to the authorities of effected EU countries within 72 hours of finding the breach.
- You are required to delete personal data that is no longer relevant to the original purpose for processing. However, since your purpose is ‘finding and presenting candidates to clients’, data may be stored on data subjects who have given consent for this specific operation to data controllers.
- Candidates that are EU data subjects may request that you send their personal data to another data controller or request that you delete their personal data and halt the further use or dissemination of this data by third parties.
- Data controllers must adhere to ‘privacy by design’, and have data security as a main design element of any system storing and safeguarding personal data.
Who does the GDPR affect?
“The GDPR not only applies to organisations located within the EU but it will also apply to organisations located outside of the EU if they offer goods or services to, or monitor the behaviour of, EU data subjects. It applies to all companies processing and holding the personal data of data subjects residing in the European Union, regardless of the company’s location.”
What are the penalties for non-compliance?
“Organisations can be fined up to 4% of annual global turnover for breaching GDPR or €20 million. This is the maximum fine that can be imposed for the most serious infringements, such as not having sufficient customer consent to process data or violating the core of Privacy by Design concepts.There is a tiered approach to fines (e.g. a company can be fined 2% for not having their records in order (Article 28) not notifying the supervising authority and data subject about a breach or not conducting impact assessment). It is important to note that these rules apply to both controllers and processors – meaning 'clouds' will not be exempt from GDPR enforcement.”
How GDPR Will Change Recruiting
Any recruiter that regularly or even periodically works for clients in the EU, will need to have the consent of data subjects and compliance with GDPR as a top priority.
Even storing the personal data of an EU data subject without their consent is a violation of GDPR, and recruiters doing business in the EU must ensure that all data tools, contacts lists and other data being stored does not contain personal data that has not met the GDPR terms for consent.
Here are the new terms of consent under GDPR:
“The conditions for consent have been strengthened, and companies will no longer be able to use long illegible terms and conditions full of legalese, as the request for consent must be given in an intelligible and easily accessible form, with the purpose for data processing attached to that consent.
Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language. It must be as easy to withdraw consent as it is to give it.”
This new requirement means that all companies trading in the personal data of EU data subjects will be issuing updated terms of consent to data subjects before using their personal information, for example, as an entry in a candidate contact list.
Recruiting companies should not worry about the ATS and other candidate data tools they use being offline, or being offline for long, as these data companies have been preparing for GDPR compliance for years. That being said, recruiters should not assume that their data resources are compliant with GDPR until this has been confirmed by the data provider in question.
How to Prepare for GDPR
All recruiters are responsible for following GDPR regulations, but companies that control large amounts of personal data related to recruiting will have the most extensive work to complete in preparation for GDPR.
Recruiters should prepare for GDPR by checking that any personal data resources that they use (applicant tracking systems, contacts lists, professional networks, etc.) are compliant with GDPR.
Recruiters who regularly work with the information of EU data subjects should create ‘use of personal data consent agreements’ that can be sent to candidates residing in the EU.
Recruiters should also perform an audit of the candidate data that they have on file, as storing the personal data of an EU data subject without satisfying new conditions for consent is a violation of GDPR.
Here’s a quick checklist to help you prepare for GDPR:
- You have asked data resource providers, such as the providers of the contacts lists you use, for proof that they are or will be compliant with GDPR by the 25th May, 2018 deadline.
- You have conducted an audit of the candidate personal data that you or your company possess, and have confirmed that you are not using or storing the personal data of an EU data subject without their consent.
- You have conducted an audit of your data security to ensure that the personal data of all candidates (including EU data subjects) is protected sufficiently to satisfy the conditions of ‘privacy by design’.
- You have updated any privacy contracts you use for candidates in the EU to ask for consent to use personal data in your recruiting operations, including a description of these operations ‘using clear and plain language’. This updated contract should be sent to any EU data subjects in your candidate databases.
Even if you are a recruiter operating outside of the EU, you need to be sure that a forgotten entry in a candidate database isn’t putting you at risk for a massive fine.
Recruiters and recruiting companies use an incredible amount of personal data, so it is in your best interest to perform a GDPR compliance audit of the data resources that you use and the candidate data you currently possess.
Additional GDPR Resources
GDPR is a complicated subject, and it’s understandable if you still have some questions about the related changes.
We’ve collected some resources that can help answer questions you may have about GDPR and to help you learn more about the regulations:
GDPR Frequently Asked Questions
What is a Data Processor and What are the Duties of A Data Processor Under GDPR