Ⅰ. Concept

Recruitment of workers is in principle the employer’s prerogative, and for years there were no laws to regulate it. While the employment documents and recruitment review costs required by employers when hiring employees are a great burden to job seekers, there have been rare instances where the employer has returned the employment documents voluntarily or has returned them when requested by the job seeker. In addition, there have been irregularities in the recruitment process, such as retaining business suggestions of job seekers, and posting false recruitment advertisements for the purpose of promoting companies. As a result, the Act on the Fairness of the Recruitment Procedures(hereinafter referred to as the “Recruitment Procedure Act” or “the RPA”) was enacted in 2014, and employers who ordinarily employ more than 30 workers fall under this Act, which limits their rights in the recruitment process(Article 3).
Numerous recruiting scandals have occurred recently in both public and private companies, and so a need was perceived for systematic supplementation in order to guarantee the fairness of the recruitment process. On July 17, 2019, the Recruitment Procedure Act was partially amended and implemented. The RPA prohibits certain hiring practices(Article 4-2, Paragraph 1), and also prohibits the act of giving or receiving goods, entertainment, or property during recruitment(Article 402, Paragraph 2). In addition, a penal clause(Article 17) has been established to handle violations, which implements effective sanctions.
In this article, I will look closely at how strictly unfair employment practices can be sanctioned and also at employers’ obligations in the process of hiring.

Ⅱ. Sanctions against Unfair Hiring Practices

1. Prohibition against false advertising (Article 4 of the RPA)

Employers shall not put out false recruitment advertisements for purposes such as collecting ideas or publicizing the workplace under the pretense of recruitment. Any employer who puts out a false recruitment advertisement in violation of this Act shall be punished by imprisonment of up to five years or a fine not exceeding KRW 20 million(Article 16 of the Act). This Article was designed to protect the interests of job applicants and to prevent social and other damages.
In addition, the employer shall not make changes to the recruitment advertisement that are adverse to any specific job seeker without justifiable reason, or adversely change the working conditions presented in the recruitment advertisement without justifiable reason after employing the job seeker. The employer shall not force the applicant to assign his ownership of intellectual property rights such as employment documents and related papers. In violation of this, the employer a fine of up to KRW 5 million will be levied(Article 17).
This implies that a change in the type of job, type of employment and/or working conditions proposed in the recruitment advertisement by the employer violates the principle of good faith, and shall not be allowed in consideration of the need to protect the trust of jobseekers in the job announcement. The prohibition against changing the working conditions as presented in the recruitment advertisement is intended to protect the interests of the job seeker by prohibiting an unfavorable change of working conditions, considering the fact that the job seeker is in an inferior position to the employer. In addition, the copyright and intellectual property rights of the jobseekers are protected by related laws such as the Copyright Act and the Framework Act on Intellectual Property, but because of the lack of substantive protection, the introduction of such restrictions in the RPA will enlarge the scope of direct protection.

2. Prohibition against unfair recruiting (Article 4-2 of the RPA)

Whether or not an employer hires a particular individual is the employer’s own prerogative, and needs to be respected. However, if employees are being hired through open competition rather than individual recruitment, they should be given fair competition opportunities based on the job announcement. The revised Law on Recruitment Procedures enacted in July 2019 is intended to prevent unfair employment practices and to prevent actions such as unfair requests, pressure and force that hinder sound employment and social order; this Act also prohibits the offering or receiving of money or goods. It imposes a fine of up to KRW 30 million for violations.
Although the existing penalties for unfair employment apply to business obstruction under the Criminal Act, there are limits to the application for criminal offenses. Therefore, the Recruitment Procedure Act introduced this new content and can now punish unfair recruitment practices under labor law. In order to establish a business obstruction in Article 314 of the Criminal Act in the case of unfair recruitment, it is necessary to have an illegal act in the form of hierarchy or power information-processing, and the action must interfere with human affairs; that is, the work of others. However, there is a legal limit to applying the Criminal Act because the person who engages in illegal recruitment is usually the decision-maker of the company, and the recruitment work corresponds to his original work and does not correspond to an ‘other person’s work’. Therefore, it is meaningful that we can now partially supplement the vacancy in punishment of unfair recruitment practices in the Criminal Act by introducing the prohibition against unfair recruitment practices in the Recruitment Procedure Act.

3. Prohibition against requesting personal information that is not relevant to the job (Article 4-3 of the Act)

The employer is not allowed to require that the applicant include personal information in the basic recruitment form that is not required for the performance of his/her job, or to collect it as evidence material. Such restricted personal information shall be collected and processed only in accordance with the following: ① the physical condition of the applicant’s appearance, height, weight, etc., ② the area of origin of the applicant, marital status and property; ③ education, occupation, and property. A fine of up to KRW 5 million will be imposed for violations. However, in the legislative process, the attachment of an identification photo to the employment documents was excluded from the collection restrictions. The reason for this is that ID photos are considered a necessary part of the applicant’s identity verification in both the recruitment review and the interview.

4. Prohibition against jobseekers paying for recruitment review (Article 9 of the Act)

The employer shall not incur any monetary cost(recruitment review fee) for the job seeker other than the cost of submitting the job application document. However, if there is an unavoidable circumstance due to the specific nature of the workplace or occupation, it may be approved by the Minister of Employment and Labor to have a job seeker pay a portion of the recruitment review fee. A fine of up to KRW 3 million is imposed for violations.
Here, recruitment review costs are directly related to the recruitment, such as the cost of planning and preparing the recruitment, the recruitment ad, etc., and recruiting applicants, which refers to any indirect costs. The employer shall be fully liable for this cost in accordance with the principle of beneficiary burden.

Ⅲ. Employer Obligations in the Recruitment Process

1. Obligation to notify

The employer has obligations to inform job seekers of four things. Job seekers should be notified that the recruitment documents have been properly received, that the recruitment schedule and procedures are ongoing, the status of their recruitment, and of the right for rejected applicants to have their documents returned. Notification methods include posting on a homepage, text transmission by mobile phone, e-mail, fax, and telephone. Notifications must be made without delay for the relevant matters in the recruitment procedure.
1) Notice upon receiving application documents: Acceptance of application documents(Article 7, Clause 2 of the RPA)
2) Notice during the recruitment process: recruitment schedule and recruitment process(Article 8)
3) Notice of status of application for recruitment: whether the job seeker has been hired or not(Article 10)
4) Notice if employment has been denied: return of employment documents, etc(Article 11, Paragraph 6).

2. Obligation to return documents (Articles 11 and 17, Paragraph 3)

Since the employer requires various evidence of qualifications when hiring, job seekers are required to pay an average of KRW 155,000 per application to verify their qualifications, meaning the average cost for a job seeker to get a job amounts to KRW 4,495,000(when applying 29 times). If a job seeker receives their employment documents back, this can reduce the cost of finding a job.
If a job seeker who is not hired requests the return of his recruitment documents, the employer shall send or deliver the documents to the jobseeker within 14 days from the date on which the jobseeker requested them, after confirming the job seeker’s identification. However, the company shall not be obliged to return any documents submitted through the homepage or e-mail or documents which were voluntarily submitted by the applicant without the employer’s request. To be prepared for such requests, the employer shall keep the employment documents for a period no less than 180 days, which shall begin 14 days from the date the job seeker was officially not hired, and notify the job seeker of the period of retention. In principle, the cost of returning the employment documents is borne by the employer. However, the job seeker may be liable to pay expenses to receive the documents according to the individual application. If the company does not fulfill its obligation to retain the employment documents, or if the company does not notify the job seeker, the employer will be subject to a penalty of up to KRW 3 million.

3. Storing and deleting documents

The employer shall keep the employment documents for the period prescribed by Presidential Decree. However, the employer shall be deemed to have fulfilled the obligation to return the employment documents if the employment documents are lost due to natural disaster or other reasons not caused by the employer(Article 11(3)). The retention period is from the date of recruitment application to the date of request for the return of documents. If the company is requested to return the documents, the employer must send them by special delivery from the post office(Article 3 of the Enforcement Decree to the Act).
The employment documents contain the job seeker’s personal information, and as the need for privacy is paramount, the documents should be destroyed after a certain period of time. If the period for requesting return expires or if the employment documents are not returned, the employment documents must be destroyed in accordance with the Personal Information Protection Act(Article 11, Paragraph 4). The destruction of employment documents shall take place within 5 days after this period expires, as stated in the Personal Information Protection Act. The methods acceptable for destroying personal information are: ① For electronic files: permanent deletion in a way that cannot be restored; ② For recorded, printed, written or other recording media: shredded or incinerated(Article 16 of the Enforcement Decree to the Personal Information Protection Act).

Ⅳ. Conclusion

Since in the past there were no restrictions on the employer’s procedures for employing workers, employers have sometimes abused their freedom in the course of hiring, which has resulted in high costs of recruitment for job seekers and even led to frequent recruitment irregularities. The Recruitment Procedure Act aims to curb such abuses by the employer in the recruitment process, reduce the job seeking expenses of the job seeker, and establish fair recruitment procedures. However, since there is a lack of social awareness or publicity regarding the Recruitment Procedure Act, it is generally accepted and recognized that job seekers cannot always be protected in reality. Therefore, strict enforcement of the Recruitment Procedure Act is very much necessary in order to restrict some of the previously-unlimited rights of the employer and ensure the rights of job seekers.