Feedback in the recruitment process is a tool used to provide a response to and assessment of an individual. Sometimes it is seen as a “mere” matter of etiquette; at other times, it is neglected.
However, with the advent of Law 13,709/2018, the General Personal Data Protection Law (“LGPD”), the possibility of receiving a response about an automated recruitment process involving, initially, the analysis of the candidate’s résumé becomes a right guaranteed by law.
That is, a candidate’s résumé is a document containing a wide range of personal and sensitive data and, therefore, when a decision, such as whether or not to proceed with the candidate in the recruitment process, is based solely on this data, the employer must, whenever requested, provide clear and adequate information about the criteria used for the decision.
The legal basis lies in the principle of transparency set out in art. 6, VI, as well as in art. 20, both of the LGPD. See:
“Art. 6 Personal data processing activities must observe good faith and the following principles:
(…) VI – transparency: guaranteeing data subjects clear, accurate and easily accessible information about the processing and the respective processing agents, subject to commercial and industrial secrets;
Art. 20. The data subject has the right to request a review of decisions made solely on the basis of automated processing of personal data that affect their interests, including decisions intended to define their personal, professional, consumer and credit profile or aspects of their personality. (Wording given by Law 13,853 of 2019)”.
Although the letter of the law refers to automated decisions, under the principles adopted by the legislator there is room for a broader interpretation, aimed at covering any decision involving this data. In other words, feedback will not be restricted to decisions based on automated processing, and may – and should, if requested – also be provided in the case of individualized handling of the recruitment process.
It should be noted that non-compliance with the rule may lead to an audit by the National Authority to check for discriminatory aspects in the processing of this data, subjecting the agents to administrative sanctions, as provided for in article 52 of the LGPD.
Thus, it is no longer a matter of a “simple” duty of etiquette or respect for others required of recruiters, since the legal system has ensured candidates’ right to feedback.
