France: What Information Can You Gather on Job Candidates?

​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 recruiting in France.

What Questions Can I Ask a Candidate?

First, the recruitment process must abide by the principle of nondiscrimination. 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 nonmembership, real or supposed, of a particular ethnic group, nation or alleged race.
  
• Religious convictions.
  

In order to ensure awareness of the principles of nondiscrimination, companies employing at least 300 employees as well as recruitment agencies must provide training on nondiscrimination 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 minimization, 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

• Do avoid 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 not ask candidates for information about their place of residence or address, if they do not provide it.
  

Diplomas

• Do feel 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.
  

Professional experience

• Do feel 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.
  

Driving records

• Do ask a candidate for his or her driving license or an affidavit stating that he or she holds a valid license, but only if a driving license 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 license (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 license is automatically lost).
  

Criminal records

• Do not ask 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.

Credit scores

• Do not ask 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 penalized 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.

Ius Laboris is the world's largest global HR and employment law firm alliance. The article was led by Capstan Avocats, which has offices in France. © 2018 Ius Laboris. All rights reserved. Reposted with permission of Lexology.