This article provides a checklist of the questions employers can and cannot ask job candidates and sets out the rules around information gathering during a recruitment process.
Firm: Capstan Avocats
As an employer, you always want to hire the right person for the job. This is especially so in France, where terminating an employment agreement after the trial period can be fairly burdensome. Yet, in France, there are limits on the types of information you can request, directly or indirectly, about a job candidate.
We set out below some questions that all employers should consider before launching a recruitment process.
What questions can I ask a candidate?
First, the recruitment process must abide by the principle of non-discrimination. While this might seem obvious, the person in charge of recruitment must be careful to take into account the French definition of discrimination.
Prohibited forms of discrimination are not limited to those based on a candidate’s origin, gender, family situation, age or sexual orientation. For example, employers may not discriminate against candidates based on their place of residence. It is therefore preferable not to ask candidates where they live.
The full list of protected classes is as follows:
- family situation
- physical appearance
- special vulnerability due to a known or apparent economic or financial situation
- bank domiciliation
- place of residence
- loss of autonomy
- genetic characteristics
- sexual orientation
- gender identity
- political opinion
- trade union or mutual activities
- ability to express oneself in a language other than French
- membership or non-membership, real or supposed, of a particular ethnic group, nation, or alleged race
- religious convictions
In order to ensure awareness of the principles of non-discrimination, companies employing at least 300 employees as well as recruitment agencies must provide training on non-discrimination principles in the recruitment process to their talent acquisition and/or recruitment teams at least every five years.
Additionally, based on the general principles of proportionality and data minimisation, recruiters should ask themselves the following question before collecting information about the candidate: Do I really need to collect this particular information? In other words, is the information sought directly job related, and do I need it at this stage of the recruitment process?
Lastly, based on the principle of transparency, candidates should be informed about the system for collecting information before any collection takes place (see below).
Based on these general principles, here is a short list of do’s and don’ts:
Personal information about the candidate
Doavoid asking candidates about anything related to the list of protected classes where possible, especially sensitive data (such as ethnicity, gender or sexual orientation).
Do not ask questions if they are not directly relevant to the job at hand, such as questions regarding hobbies, military records or how the candidate became a French citizen.
Do not discuss religious and political views with candidates.
Do not ask for personal data until it becomes necessary in the course of the recruitment process (e.g. you do not need the candidate’s social security identification number before preparing the draft employment agreement).
Place of residence
Do notask candidates for information about their place of residence or address, if they do not provide it.
Dofeel free to ask for a copy of diplomas.
Do not ask for school records. If you would like to get information on a candidate’s educational background, you should directly contact the schools or universities in question after informing the candidate and obtaining his or her prior written consent.
Dofeel free to ask for employment certificates.
Do feel free to collect information and references from former employers (or former colleagues), but only after informing the candidate and obtaining his or her prior express consent.
Do not ask for previous pay slips. Unless a candidate reveals his or her salary history, you may not inquire about it.
Doask a candidate for his or her driving licence or an affidavit stating that he or she holds a valid licence, but only if a driving licence is necessary for the job (e.g. a sales representative who needs to drive to client meetings).
Do not ask a candidate how many points he or she has left on his or her licence (as a reminder, in France, each driver starts with a certain number of points and deductions are made for infractions; if all points are lost, the licence is automatically lost).
Do notask candidates about their criminal record, unless an exception applies, such as when the request is justified by the nature of the job or specific job requirements, for example security guards, bank employees or jobs involving work with children.
When justified, employers can ask the candidate to provide an ‘extract no. 3’ of his or her criminal record, which lists the most serious criminal convictions. Only the candidate can request an ‘extract no. 3’ of his or her criminal record, since these are not public.
Do notask for credit scores, since they do not exist in France.
If an employer asks a candidate one of the above-mentioned prohibited questions, the candidate is not required to answer and cannot be penalised for not responding or for giving an inaccurate answer.
Can I use social media to gather information?
Nowadays, we all tend to put a lot of information (possibly too much?) about ourselves online. This makes it tempting to check out a candidate’s online presence. You might even learn more about a candidate online than during an interview! But is it legal?
Yes. You can use social media, especially professional social networks, provided that the data posted by the candidate is accessible to the general public after login. The candidate must also be informed beforehand and the information used must be relevant for the job at hand. So, unless these criteria are met, a candidate should not be denied a job based on his or her photos on social media.
What about asking for references?
You may contact a previous employer for a reference, after you have informed the candidate and obtained his or her express consent.
Do I have to involve employee representatives?
In companies with at least 50 employees, the Social and Economic Committee (‘SEC’) (or the Works Council, if an SEC has not yet been elected) must be informed of all recruitment methods and techniques used by the company, as well as all subsequent modifications of these methods and techniques.
This information must be given before the introduction or modification of these measures within the company. The SEC must also be informed prior to processing personal data gathered through the recruitment process.
Lastly, an employer must give its SEC prior notice that it intends to use a recruitment agency.