The use of electronic media in the recruiting process is referred to as digital recruiting or e-recruiting. Using the Internet as a medium to advertise job vacancies is no longer an innovation. More than 90% of vacancies at the top 1,000 German companies are published on the companies’ websites and more than 70% of job openings can only be found online (Recruiting Trends 2018 study by the University of Bamberg). However, there are almost no limits to the digital recruiting evolution. Active sourcing, social (career) networks, mobile recruiting, applicant management tools, or people analytics are just a few examples of growing trends in the recruiting process. In addition to profitability and efficiency, the new recruiting processes also raise a number of legal issues, in particular relating to IT law and data protection law, which need to be considered and observed.

The scenario in which an employer places a job advertisement, leans back and waits for applications is largely a thing of the past. Rather, companies are actively looking for the right applicants, a practice referred to as active sourcing, which, according to the Recruiting Trends 2018 study by the University of Bamberg, already fills 13% of job vacancies. This is where research in social (career) networks comes in particularly handy. Users have already posted information on the basis of which companies are able to cost-effectively preselect suitable employees. Companies, for their part, may also publish job ads on social networks. The network algorithm likewise supports the process and suggests job ads to its users that, based on their profiles, might be of interest to them.

Mobile recruiting goes even one step further. In addition to the availability of (career) networks on mobile devices, there are supplementary apps that can be linked to those networks. Brief job descriptions are displayed to users, who can decide for or against jobs by swiping right or left. If interested, the respective company will receive the applicant’s profile and can then equally make a decision. This type of recruitment process will particularly appeal to the generation of “digital natives.”

Search engines, especially Google, have also become more important in recruiting. They are among the first three options that applicants select in their search for suitable jobs. Accordingly, it is important for companies to have their career websites and job ads show up among the first few search results. Google has recognized this development and is currently designing a special platform for job searches, called the “Google Job Search Experience.”

Active sourcing requires caution, because not every piece of information that is generally available may also be used by companies to address applicants. In general, the search for suitable candidates is justified under data protection law by legitimate interest, which does not always have the same scope, however. Above all, a distinction must be made between data that is available as a result of search engine research and data that the user makes available as member of a network. Particular attention needs to be paid to the fact whether the network is a career network or a private/leisure-oriented form of social media. It is also decisive whether users have set their profiles to private or whether the profile data is publicly available. If the data is accessible via a search engine (due to free availability on the Internet or a public profile of a (career) network), the actively seeking potential employer has a predominant public interest in processing the data for the purposes of the recruiting process. In cases of data on profiles that are set to private or information from networks which are primarily leisure-oriented, data processing can hardly be justified by business interests.

Companies that receive thousands of applications each year considerably ease their recruiting process by using applicant management tools. Such tools may be used, for example, to notify applicants automatically or to allow applicants to view the progress of their application process. In addition, companies have the option of creating an applicant pool of interesting candidates that can be accessed in the future.

Without the informed and voluntary consent of the potential employee under data protection law, it is not permissible to store applicant data in an applicant pool beyond the application process. If no consent is given, the data must be deleted not later than five months after the application has been rejected. People analytics, for example, collects and evaluates applicants’ personal data by automatically screening application documents. Phone interviews with language analysis by language bots or big data analyses also fall under this term. Additional caution is required in these cases. The algorithm must not be linked to protected attributes within the meaning of the General Equality Act or to criteria for which the employer has no right to ask questions.

Generally, in all data processing relating to the (digital) recruitment process, it is imperative to inform each candidate. Individual information must be provided when the first message to the potential employee is sent, but at the latest within one month. If candidates have been lawfully informed, necessary consents have been obtained, and all other legal aspects (under data protection law) have been considered, digital recruiting offers more opportunities than risks and should be part of any future-oriented corporate setup.