An employee’s personal information is protected by the Habeas Data Law (No. 22,326). Collection of information related to an employee’s private life (including work references) is permissible as long as the information collected complies with the following requirements:
- It is not used for discriminatory purposes;
- It does not violate the applicant’s right to privacy;
- It is reasonably used.
The determination to withdraw an offer of employment or terminate a labor relationship based on a background check that reveals false information provided by the applicant would be valid only if the “doubtful element” detected in the background check has a direct connection with the performance or capacity of the employee.
Please note that candidates are not obliged to provide information related to salary, compensation or reason for termination in previous jobs, because that may be understood as personal private information.
With regard to medical examination, it is important to note that pre-employment medical examinations are mandatory. Employers must carry out these exams to determine whether the applicant has the ability to carry out the activities related to his job position and to accurately determine preexisting disabilities at the time of hiring the employee.
Although not mandatory, there are other kinds of medical examinations that the employer may conduct. These are:
- Periodic examinations;
- Examinations prior to a transfer of activity;
- Examinations prior to the termination of the employment relationship.
However, the employee is always free to refuse a medical examination other than the pre-employment one. If an employee refuses to submit to a mandatory pre-employment examination, the employer may decide not to hire him.