20 Oct How much do you currently earn in your workplace? Routine Privacy Violations at Job Interviews!

Author: Olumide Babalola

According to the National Bureau of Statistics, employment rate in Nigeria jumped to 5.3% in the first quarter of 2024. Whatever that means in economic parlance, no one wants to be counted as part of the that demography. In our ever-competitive job market, salary negotiations play a pivotal role in filling vacancies from employer and employee perspectives.

Hence, it has become a common practice during the hiring process for prospective employers to ask job applicants about their previous or current salary. Sadly, most applicants are either desperate or helpless enough to answer such questions which could be to their detriment. Beyond the potential for reinforcing wage inequality – a common feature in the Nigerian work space – this question raises serious concerns regarding privacy rights and data protection laws.

Defensively, employers usually argue that knowing a candidate’s past compensation helps them assess whether a candidate fits within their budget. They might also claim it helps them make fair and informed decisions. However, from the applicant’s perspective, such inquisition into their earning capacities can be harmful in a number of ways, a few of these concerns are discussed in the successive paragraphs:

Invasion of financial privacy

A person’s salary and self-esteem are interconnected as they impact the person’s dignity which is the foundation of privacy. When job applicants are asked by prospective employers to disclose their salary history, they are essentially being systemically coerced or unduly influenced to reveal personal financial information. An information they will otherwise prefer to be in private, hence while some lie about the information, others are boxed into revealing the true figures.

Employers often attempt to justify the question as a necessary part of the hiring process, it infringes on an applicant’s right to privacy. Individuals should not be compelled to share details about their finances with potential employers unless it is justifiably related to the job requirements or other essential criteria – in most cases, it is an oppressive tool for the employer. Salary history is a deeply personal matter. It reflects not just an individual’s compensation package but also elements like their personal circumstances, career choices, and possibly even discriminatory pay practices. To be forced to disclose this information can make candidates uncomfortable and may dissuade them from pursuing opportunities altogether.

From a data protection perspective, even where such information is disclosed ‘voluntarily’ by the applicant, such imputed consent cannot be valid considering the imbalance in bargaining power between the parties. On this kind of invalid consent, the English data protection authority (Information Commissioner’s Office – ICO) states thus: “Consent needs to be specific and granular, which means that you must obtain a candidate’s separate consent for each processing activity. Candidates may feel that they have no choice but to give you consent in order to be considered for a job. As there is likely to be an imbalance of power between the candidate and the employer or recruiter, consent is unlikely to be an appropriate lawful basis to use at most stages of the recruitment process.” [1]

Propensity for Bias and Wage Inequality

Inquisition into salary history questions are inherently targeted towards perpetuating wage inequality and bias. When recruiters ask  about previous salaries, the results may (un)intentionally lock candidates into lower-paying roles, based on what they earned at previous jobs, even i circumstances where they have grown and become entitled to a higher wages. This question potentially widens the pay gap, particularly for women and the vulnerable minorities, who have historically earned lower wages compared to their male and other privileged counterparts.

If prospective employers continue to use salary history as a baseline for setting pay, it risks perpetuating a cycle where underpaid individuals are continuously offered lower salaries. This practice often leaves workers from marginalized groups in a disadvantageous position, perpetuating systemic wage disparities.

Demands of Data Protection laws

Data protection became a statutorily recognized concept in 2023 through the passage of NDPA. The legislation reinforces certain principles of data processing, imposes obligations on employers (as controllers) while guaranteeing employees’ rights (as data subjects).

Admittedly, financial data does not come under the definition of sensitive data, however its processing must be done in accordance with the principles of data processing recognised under section 24 of the NDPA. The first test is measured towards the principle of lawfulness, fairness and transparency. Except the law specifically empowers a prospective employer to ask such questions, there is no lawful ground to make such inquisition. Employers are reasonably expected to have salary scale for every job opening, hence asking an applicant to disclose his current earnings negates such duty or expectation on the employer’s part. Employers can hardly rely on the grounds of contract necessity or consent, since it is the employer that fixes remuneration which may(not) be accepted by the applicants. In ideal situations, employers ought to even give an idea of the salary scale at the time of advertisement of vacancy except other considerations negate such disclosure. As for consent, I have shown earlier that such consent is vitiated as involuntary and unduly obtained by the imbalance in parties’ status.

Let us even assume for a second that the employers have a lawful basis to make such intrusive request, the demand still fails the fairness test. Section 24(1)(a) of the NDPA mandates employers (as controllers) to ensure that they process personal data fairly. In explaining the requirement of fairness, the Nigeria Data Protection Commission states thus: “Fair” means the data processing is free from prejudice and exploitation and it is generally consistent with civil liberties in a democratic society.” (see page 57 of the NDPA General Application and Implementation Directive). Hence, an interview question on salary history will potentially prejudice a job applicant and lead to their exploitation.

Focus ought to be on Skills and Value

Rather than focusing on an applicant’s past salary, employers should center their hiring decisions around the skills, experience, and qualifications a candidate brings to the table. Salary negotiations should be based on the value the applicant can add to the company and the industry standards for that position, not on the salary they have received in the past.

Employers can offer competitive compensation packages based on the candidate’s expertise, education, and market value, ensuring a more equitable and merit-based approach to hiring. This method helps ensure that all candidates, regardless of their past salary, are evaluated fairly.

Better approach

For a more inclusive, fair, and transparent hiring process, employers should refrain from asking about salary history. Rather, they should:

• • • • Determine compensation offers based on the job’s requirements and market standards.
      • Communicate a clear and transparent pay scales.
      • Assess candidates’ qualifications without bias.
      • Respect applicants’ privacy by avoiding irrelevant or intrusive questions.

As laws around salary history inquiries continue to evolve globally, Nigeria should not be left out of the the trend as many jurisdictions are moving toward protecting candidates’ privacy and ensuring more equitable hiring practices. For example, in California such questions are prohibited. Employers who adapt to these changes not only comply with data protection laws but also demonstrate a commitment to fair hiring practices that prioritize candidates’ abilities and potential rather than their financial past.

Conclusion

In conclusion, asking candidates about their previous or current salary is not just an uncomfortable question for many, it is a violation of privacy and a potential breach of data protection laws. The focus in the interview process should be on the applicant’s qualifications, potential, and alignment with the position, rather than on what they have been paid in the past. As laws evolve and companies strive for fairness and equality, it’s time for the outdated practice of asking about salary history to be left behind.

[1] See https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/employment/recruitment-and-selection/data-protection-and-recruitment/