INTRODUCTION

In this article we will make brief comments on the scope and practices regarding the treatment of information in the context of job interviews in Argentina.

I. How do I handle the issue of background checks, including those involving sensitive personal data such as criminal records?

You cannot request applicants to disclose sensitive data if this is not provided by the law. Sensitive data includes ethnic or racial origin, political opinions, religious, philosophical and moral beliefs, trade union membership, sexuality, and health or medical background.

Health issues and criminal records are particularly delicate issues when recruiting employees. These are dealt with below:

a) Pre-employment health examination:

The employer has the obligation and the right to conduct pre-employment health examinations of the applicants. Pre-employment examinations are a series of general and basic medical tests.

The purpose of the pre-employment examinations is: (i) to determine the suitability of the applicant´s psychophysical conditions for the work, which in no way can be used as a discriminatory element for employment; (ii) to detect pre-existing pathologies that might worsen if exposed to risky chemical elements listed by Decree Nro. 658/96; and (iii) to inform the labor risk insurance company for future medical attentions and cover.

Employers may request further examinations other than those provided for by the law for the pre-employment examination, as long as this is justified by the kind of work to be performed by the applicant. Each particular case must be analyzed.

Also, the employer may request self-attestations from applicants informing of diseases, ailments or medical history.

b) Criminal Records:

Criminal record checks are not prohibited in Argentina. However, these checks should be

carried out in a non-discriminatory manner.

Under Argentinean law, job offers may not contain restrictions for reasons such as race, ethnicity, religion, nationality, ideology, political or union opinion, sex, gender, economic position, social condition, physical characteristics, disability, residence, family responsibilities or criminal records of persons who served out their sentence.

II. Are there particular issues in checking candidates’ social media profiles?

It is not unlawful to check candidates’ social media profiles. This matter is not subject to regularization. If the candidates’ social media profiles are public, there are no legal impediments to check them.

III. Can I ask candidates about their Covid-19 vaccination status?

In Argentina there is no legal obligation to be vaccinated against COVID-19. However, there are conflicting positions regarding this: some argue that, in the exercise of freedom of choice, employees could choose not to be vaccinated, while some others argue that employees could be forced to be vaccinated to safeguard the health of their colleagues, their own health, and the health of society.

Candidates can be asked to report about their COVID-19 vaccination status, but they are not legally obliged to answer.   Since this is sensitive personal data, they are under no obligation to respond, nor can they be forced to respond.

Again, employers may ask employees about their vaccination status, as long as this is justified by the kind of work to be performed by the applicant. Each particular case must be analyzed (eg. medical institutions, adults care).

IV. Are employees entitled to lie or to omit information; if information is subsequently found to be false, what can I do?

Employees are only obliged to provide the information required by law. In case the applicant lies or omits information, it will be necessary to check whether the information omitted or lied about was concerning an essential condition for the job or not.

This will determine whether or not a sanction to the applicant is appropriate and also how serious the such a sanction will be.

Sanctions may include reprimand, suspension, or dismissal with fair cause. Sanctions will be proportional to the seriousness of the lie or omission of information by the employee, mostly if it affects the development of his work.

V. How should I deal with the personal data of unsuccessful candidates?

The Data Protection Law establishes that once personal data is no longer used, it must be immediately destroyed. Exceptionally, candidates data may be retained for future job search processes if the candidates express consent to do so.