Everything You Need to Know about the New Law on Informing Job Applicants if They Have Received the Job or Not
The article was written courtesy of Vanina (Ilanit) Rosenzweig, who gives ongoing legal counsel to companies and businesses on all business-related fields such as contract law, commercial law, and labor law.
On 16/12/2014, the Knesset enacted Amendment No. 6 to the Notice to the Employee and Job Applicant (Employment Conditions and Screening and Hiring Procedures) Law 5762-2002, revision effective as of February 2015. As part of the amendment, the Knesset changed the name of the law from “Notice to the Employee (Employment Conditions) Law 5762-2002” to “Notice to the Employee and Job Applicant (Employment Conditions and Screening and Hiring Procedures) Law 5762-2002”. The amendment itself not only included employees who were actually hired by a specific employer, but also a new kind of population – “job applicants”.
With this amendment, the legislature sought to determine several rules regarding the communications between employers and potential employees seeking to join the company.
The purpose of the legislation was to resolve a problem whereby potential candidates were waiting forever for responses from employers who had begun the screening process with them, a situation which is nerve-racking for the candidate and even caused certain applicants to stop searching for a job with other potential employers. This, in expectation of being hired by the organization that had already begun the screening procedures with them. On the other hand, many employers never bothered to inform the applicants about their progress in the hiring process, or if they were not being considered anymore for that position. The legislature was of the opinion that this was disrespectful toward the job seekers, who were left without protection regarding anything connected to the screening process, and this amendment was adopted accordingly.
It should be noted at this point that the law is “one-sided,” as the obligations it imposes are on the potential employer alone and not on the employee. There is no reference in the law to the obligation of the employee to inform the potential employer about his acceptance of another position, if such should be the case… Or alternatively, his unwillingness to continue the screening process for a specific job, an issue that could cause any potential employer unnecessary expense with regard to the hiring procedures that must take place for every candidate.
When it comes to labor laws, the legislature’s trend is clear to us, as for the most part it takes the workers into consideration (and in this specific case, the job applicants), rather than the company. Most of the time it doesn’t examine in detail the consequences of each new labor statute for the employers – especially those that are not considered large enterprises – with regard to the expenses that laws in general (and this statute in particular) force employers to incur due to their obligation to obey its rules.
Yet there is one piece of good news for employers regarding this new amendment: the law does not impose any specific sanctions for non-compliance. The clause regarding the obligation imposed on the employer to inform the applicant about the hiring process falls under the Administrative Offenses Act and not under the Law for Increased Enforcement of Labor Laws.
Therefore, in practice, beyond the provisions of the law, namely “real pecuniary damages” that are directly caused by non-compliance with the law, including the burden of proof that the plaintiff has to provide regarding such damage, the job applicant cannot enforce the provisions of this amendment. This is actually good news for employers, since the legislation usually imposes administrative fines on them for the various violations listed in a law or, alternatively, (and in accordance with other labor laws), for instance have rights such as the right to receive compensation without proof of damage.
On to the heart of the matter:
What is the law telling us?
The law obligates the employer to send written notification, via letter or any other electronic method (including email, SMS or any other kind of message sent to a phone, fax, etc.) to a job applicant who had an interview or test, wherein he is informed (at least once every two months thereafter) of the progress in his screening process. Alternatively, if the candidate was not hired, then he must be notified of the decision not to accept him for the applied position (no later than 14 days following the date on which another candidate was accepted).
The law states very precisely what information must be included in the message: the names of the employer and the job applicant, the date on which the screening process began, the identity of the authority performing the screening process (if it is not the employer),the position or job for which the screening process is being performed, and the name and position of the person sending the notification on the employer’s behalf.
This law and its provisions shall not apply to the following types of businesses or jobs: positions that will last for fewer than thirty days, jobs in the catering industry, jobs for an employer who employs no more than 25 employees, etc. The list is actually unfinished, because the law says that the minister in charge may, with the approval of the Labor, Welfare and Health Committee, determine other types of jobs or businesses for whom these provisions do not apply.
Questions and Answers:
Does this apply only to businesses or also to job agencies?
On the one hand, the language of the law is specific: it includes companies that employ over 25 employees, so as not to impose expenses on places considered “small businesses”. On the other hand, the law does not refer specifically or in detail to the status of placement agencies and contract employees.
I will divide my answer into two parts. First, regarding placement agencies: Placement agencies usually have an applicant undergo two processes. The first is an interview in the agency itself, wherein they get an impression of the applicant to see if he is suitable for a specific position, or if he should even be included in the pool of potential candidates it makes available to its clients when they request a job placement service for a certain position. If the candidate is passed on to the client to begin the screening process as a potential employee, then at the point when he has an interview or test at the potential employer, the obligation is transferred to that employer. In cases where the applicant’s contact information has not been given to the potential employer, it can be assumed that this obligation will fall upon the placement agency, since it is the one preventing said contact. Regarding those applicants who enter the pool of job seekers belonging to the placement agency and do not get to the interview stage, or who have been passed on to the potential employer but who have not been invited to an interview, it can be assumed that the conditions of the law regarding the notification procedure have not been fulfilled, so the obligation to notify does not apply.
Regarding applicants who have been interviewed by placement agencies and put into their pool of potential candidates, it can be assumed that they also do not fall under the provisions of this law, since they aren’t candidates for a job with the interviewer’s company (otherwise, we would be getting into the category of contract employees, or an employee of the placement agency itself). However, as a lawyer in the field, and since there isn’t yet enough case law in this area from which one could draw conclusions one way or another, I would suggest that placement agencies draft a generalized form tailored to the requirements of the law that would absolve them from the obligation to send such notification or, alternatively, that does fulfill the requirements of the law. Every lawyer who specializes in labor law can prepare this kind of form for a company.
Placement agencies that act as manpower contractors: Regarding the role of placement agencies as manpower contractors, the answer is different. Although the law does not specifically refer to the issue of manpower contractors, if you read the protocol (Protocol No. 336) of the Knesset session dated 02.12.14, wherein Members of Knesset discussed every clause of this law, the MKs say outright that the law and its obligations do not apply to contract employees and manpower contractors. In light of the fact that this issue is not specifically noted in the law’s clauses (since the law did make sure to list those to whom this law does not apply), and since there has been no verdict on this issue and the law has not been tested yet in a courtroom, we don’t know how a court would rule on such a case in the future. Maybe then my answer would change. In light of this, and despite the hesitation on the part of the MKs, to avoid all doubt I would suggest drafting a general form which complies with the law that can also be given to contract employees who are potential job candidates.
The law applies to what size of company?
Theamendment to the “Notice to the Employee and Job Applicant (Employment Conditions and Screening and Hiring Procedures) Law 5762-2002, applies to employers with more than 25 employees who are not in the catering fields, and to jobs lasting more than 30 days. So too, the minister in charge may, with the approval of the Labor, Welfare and Health Committee, determine other types of jobs or employers for whom the provisions of clause 3A do not apply.
If an email has not been sent to a job applicant telling him that his CV was received, does one have to update this candidate anyway?
No. The only update demanded by the law is for applicants who have had a job interview with the potential employer or have had some kind of test. The legislature does not intend to burden the employers with the obligation to notify every person who sends them a CV. They just have to notify those with whom they have come in contact in the two ways described above.
When does the recruiting process really begin? Does it start with the initial phone call? With the first meeting?
As said above, when the law refers to a screening process, it means “an interview or test”. That is, the moment that one of these is initiated by the potential employer, and in the event he is not exempt under the law, he then has the obligation to send the notification as stated above.
Is sending an SMS valid according to the law?
Yes. The law defines the method of sending messages quite widely. This was seemingly done to make it easier for the potential employers to notify candidates if they are obligated to do so. According to the law, notification is: “including a message sent electronically or via a different technological method,” from which one can conclude that an SMS is also an option, as is WhatsApp.
If someone is hired for a position that this applicant applied for, but there are other positions available as well, is the company obligated to notify the applicant that another person has just been hired?
One can conclude from the way clauses 3A(a)(1) and 3A(a)(2) are formulated that the intention of the notification is to let the applicant know that the position is still available and relevant for him. On the one hand, if an employer takes more than 60 days to fill a position, then he has to update the candidate as to the process – as long as the position is still relevant for him, of course. Because otherwise the employer would have to tell the applicant that he is no longer under consideration for the job. However, the legislation allows the employer to refrain from notifying the applicantin order to give the employer the option of continuing the screening process with one applicant or another until the position is filled, and not lose candidates on the way. Therefore, if there are several positions available for the same kind of work, as long as a candidate is a relevant option for an as-yet unfilled position, one has to update him according to clause 3 A(a)(1) – that is, once every two months – as to what is happening in the screening process. The moment that all the relevant positions have been filled and the screening process is over, one has to notify the applicant of this according to clause 3A(a)(2) and the applicant will cease to be a candidate.
Is there an obligation to tell the candidate the reason he was not accepted for the job?
The law does not impose any obligation to state the reasons why the candidate was not accepted. The intention of the legislation was to help the candidates know where they stand regarding the screening process for the jobs they are seeking. The law specifies very precisely in clause 3A(b) what information must be included in the message: the names of the employer and the job applicant, the date on which the screening process began, the identity of the authority performing the screening process (if it is not the employer), the position or job for which the screening process is being performed, the name and position of the person sending the notification on the employer’s behalf and, of course, the point that he was not accepted for the position.
Does the candidate have the right to appeal the decision?
The answer to this question is not connected to the law. Do we have the right to appeal an employer’s decision not to hire us? The right to appeal is not denied to anyone. Anyone can write a letter to an employer he dreams of working for and ask for a second chance…The law does not deal with this and also imposes no obligation on the potential employer to consider such a request, or alternatively to reply.
The writer is a lawyer who provides ongoing legal counsel to companies and businesses in all business-related fields such as contract law, commercial law, and labor law.
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