Employers process a large amount of personal data relating to their employees. These data are often stored in a personnel file. Employers may only create a personnel file if this is required to perform an employment contract or effect an appointment as government official. In doing so, they should take into account the privacy of their employees.
The Personal Data Protection Act BES provides the conditions for creating personnel files.
The main rule is that your employer may only include in your personnel file data that are necessary for the purpose of the personnel file.
In your personnel file, your employer stores the data which he or she needs to perform the employment contract entered into with you. A good personnel file contains all current data that allow your employer to support any decisions he or she makes about you, such as a salary increase or dismissal.
Some data are needed for your employer to be able to meet statutory obligations, such as paying taxes and contributions. Other data are important for e.g. personnel policy.
Data your employer may record in your personnel file include the following:
In principle, your employer is not allowed to include medical data in your personnel file.
Reports of Assessment and Performance Interviews
Your employer has no need to include reports of assessment and performance interviews in your personnel file. These reports can be stored separately by your direct supervisor. Such reports serve a specific purpose and therefore are not automatically part of personnel records.
Your employer may only include racial data in your personnel file if this is required to identify you or to apply a preferential policy (affirmative action).
Using your racial data may be inevitable to identify you, e.g. if your employer has a large number of employees and wants to establish their identities before they enter the premises.
In such case, your employer may provide all employees with photo access badges. Given that the photo on your access badge allows deducing your race, your photo can be considered racial information
If your employer wants to grant a preferential position to staff members from a specific ethnic or cultural minority group (affirmative action), your employer may need to include data about their or their (grand)parents’ countries of birth in their personnel files. This is only allowed if the persons in question have not objected to it in writing.
If you do not want your employer to record your racial data, you may file an objection at any time. You do not have to state any reason for the objection. When you file an objection, your employer must stop processing your racial data immediately.
A preferential policy is only allowed if certain people are demonstrably underprivileged. Also, your employer may pursue a preferential policy for a limited time only, until such policy is no longer necessary
Only persons such as your direct supervisor or Personnel Department officers have access to your personnel file, though only to the extent this is required to properly fulfill their duties. Likewise, they have an obligation to comply with the duty of confidentiality provided under the Personal Data Protection Act BES.
This duty of confidentiality means that any officers who have access to your personnel file have an obligation to keep secret your personal data included in that file. The only situations in which this does not apply is when they have a legal obligation to share information or when sharing information is necessary to fulfill their duties
Regulations on Access to Personnel Files
Some organizations have specific regulations on who can access personnel files. For example, such regulations may provide that only persons who have been (additionally) screened can access personnel files.
Yes, this is allowed. However, your employer may not destroy the original paper file until he or she has provided proper security for the digital file.
The Personal Data Protection Act BES provides security requirements for both digital and paper personnel files. For example, your employer must make sure that only a limited number of people have access to your personnel file.
Further, a digital file calls for different security measures than a paper file. An example are firewalls, which should be used as a security measure when the personnel information system is linked to the internet, e.g. when the possibility exists for employees to access their personnel files online.
To determine your travel allowance, your employer is not allowed to process more data than necessary. The only thing your employer needs is your home address.
Your employer is not allowed to inquire about e.g. the purchase or rental contract of your home. The reason is that this contract contains other (personal) information that is not required to determine your travel allowance. For this purpose, the only thing your employer needs to know is the home address from your personnel file or an extract from the population register stating your address
This depends on the type of data. Your employer has a legal obligation to retain certain data from your personnel file for a certain time. For example, data from the salary records that are relevant to tax calculation must be stored for seven years after the end of your employment. Wage tax statements must be retained by your employer for five years after the end of your employment.
For some data from your personnel file, the law provides no retention periods. These data are usually subject to a retention period of two years after termination of your employment. If the data become irrelevant before that, your employer should remove them immediately.
Examples of this type of data are reports of performance and assessment interviews, employment contracts and any amendments made to such contracts, correspondence about your appointment, promotion, demotion, or dismissal, certificates, and administrative data on absenteeism
Your employer may retain data relating to you as (former) employee for longer if there is (or has been) a labor dispute with you or a pending lawsuit.
This is allowed in the event of a bankruptcy, fusion, or takeover. However, to protect your privacy, your employer should comply with the following conditions:
Yes, you can. You have the right to inspect your personnel file. Likewise, you can make a request for data in your personnel file to be corrected or removed.
First of all, you should go to your employer. If your employer does not respond or you are unhappy with the response, you can address your complaint to your union.
Going to Court
You can also go to court, where you can invoke the rights conferred to you under the Personal Data Protection Act BES. For example, you can ask the judge to prohibit the processing of your personal data, ask for reparation for the (adverse) consequences, or claim damages.
No, this is not allowed at the time of registration. Only later is the temporary employment agency allowed to ask for a copy of your ID and add it to your file.
This is the time you actually start working for the temporary employment agency. The agency then enters into an employment contract with you.
The temporary employment agency is allowed to verify your identity. Therefore, the agency is allowed to ask you to show your ID. For more information, see IDs.
No, a temporary employment agency is not allowed to inquire about your health at the time of registration. Likewise, the agency is not allowed to inquire about your past illness-related absenteeism.
No, this is not allowed. If you call in sick, the temporary employment agency is not allowed to ask about the exact nature and cause of your illness.
Your temporary employment agency is only allowed to ask when you expect to be back and what (other) work you are still able to do.
No, this is not allowed. The fact that you wear a veil reveals something about your religious beliefs. The temporary employment agency is not allowed to include this in your file.
Your religious beliefs constitute so-called special personal data, just like data about e.g. your race or health. These are sensitive data. Organizations are not allowed to use sensitive personal data, except when a legal exception applies.
Screening is only allowed if it is required for the job you will be doing as a temporary worker, e.g. when you will be working in childcare.
If the screening is necessary, the temporary employment agency must further comply with the following (statutory) conditions:
For more information, see Screening.
If the temporary employment agency has screened you on instructions from the employer you will be working for as a temporary worker and this screening has revealed criminal data (e.g. that you have a record), the temporary employment agency will only be allowed to share these data with the employer (the customer) if this is necessary.
No, this is not allowed. Only the temporary employment agency’s payroll department is allowed to know this, but not your intermediary.
Temporary employment agencies must comply with the law when keeping data of temporary workers. Different laws, e.g. tax laws, provide different retention periods.
Your temporary employment agency may only keep your data if this is necessary, e.g. to comply with statutory retention requirements. If there is no (longer a) need to keep the data, the temporary employment agency should destroy your data.