Malaysia: Handle With Care

Last Updated: 18 February 2016
Article by Zamir Hamdy Hamdan

Zamir Hamdy Hamdan explains the need to safeguard employees' personal data

It is unquestionably the case that a fair amount of most corporations' repositories of personal data include those of their employees. In fact, an employee's personal data is processed and retained by the employer even before the employment relationship begins - during the recruitment stage or when the services of a headhunter are utilised. This continues throughout employment and may even extend after its termination.

The Personal Data Protection Act 2010 ("PDPA") came into force on 15 November 2013, and imposes certain obligations on 'data users' in dealing with all personal data processed by them.

DOES THE PDPA APPLY TO EMPLOYEE DATA?

It appears the answer would be "Yes".

There was previously some ambiguity as to whether the PDPA would apply to employee data as it is stated to apply only to personal data in respect of "commercial transactions" (section 2(1)).

However, the Personal Data Protection Department ("PDP Department") published a Public Consultation Paper No. 3/2014 in February 2014 entitled "Guide on The Management of Employee Data" ("Employment Guideline"). The Employment Guideline has removed any such uncertainty as it states that "it is clear that employer-employee relationship is commercial and contractual in nature as it arises from a contract of services in exchange for remuneration and the PDPA applies to such a relationship". It must be noted, however, that to date, the Employment Guideline has yet to be implemented.

DOES THE PDPA APPLY AT RECRUITMENT STAGE?

The PDPA applies to personal data collected even at the recruitment stage. This should not be seen as a hindrance to effective recruitment policies but prospective employers must bear in mind that they are expected to strike a balance between their need for information and an applicant's right to respect for their private life. The spirit of the PDPA is also that it requires openness in respect of the data collected and the purposes for which it is collected.

After all, an individual's personal data, including his bank account details, credit card numbers, NRIC number, aren't just data. In the wrong hands they can wipe out a person's life savings, wreck their credit and cause financial ruin.

There are, unfortunately, no guidelines or regulations to provide guidance on the collection of personal data by employers in the recruitment stage. In the absence of such guidelines or regulations, it may be a good idea to adopt the guidelines issued by the Information Commissioner's Office of the United Kingdom. In brief, it is recommended that employers take the following steps:

  1. Ensure that the organisation is properly identified in advertisements as applicants have the right to know who they are applying to;
  2. Ensure that those involved in recruitment and selection are aware that data protection rules apply and that they must handle personal information in line with the PDPA; and
  3. Draft a PDPA Notice which complies with the requirements of the PDPA - ensure that important details, e.g. what personal data is to be collected, the purposes of collection and third party disclosures are stated in the PDPA Notice. This PDPA Notice is to be issued to all applicants and their consent must be obtained before their personal data is collected or processed.

Some companies have in place an online application form or receive unsolicited applications via email. This gives rise to complications because applicants who apply for jobs in this manner usually would not be issued with a PDPA Notice. The PDPA provides that the PDPA Notice is to be given as soon as practicable (section 7(2)). It is advisable for companies to immediately issue a PDPA Notice to the applicant and request the applicant to consent to the processing of his personal data, failing which his application cannot be processed and the company would be obliged to destroy the data received.

Alternatively, a web link can be inserted together with the online job application form to state that by providing his personal details, the applicant is deemed to have consented to the processing of his personal data as set out in the company's PDPA Notice.

WHAT SHOULD EMPLOYERS DO TO COMPLY WITH THE PDPA?

Employers are expected to take steps to ensure compliance with the provisions of the PDPA with regard to their employee's personal data. To this end, a carefully drafted PDPA Notice is to be issued to employees. It is advisable that a fresh PDPA Notice be issued to employees despite already issuing one during the recruitment stage. This is because the type of personal data collected, the purposes of collection of personal data, and the transfer of personal data would differ between employees and job applicants.

In dealing with employees, the PDPA Notice must also be broad enough to cover circumstances which might not seem probable at that time, for example to include clauses on transfer of personal data to group companies or affiliate companies although such companies may not exist at that time. Another example is to allow for the transfer of personal data to potential buyers in cases of a change of ownership of the company.

It is a good idea to follow the non-exhaustive list below in dealing with employee personal data:

  1. Carry out scheduled audits on all personal data in the company's possession to determine the data which is essential and discard or destroy all non-essential data;
  2. Designate a mode of contact and contact person whom employees can contact to access or correct their personal data and inform all employees of the same;
  3. Establish operating procedures to deal with inquiries, complaints, and access and correction requests;
  4. Establish retention periods for personal data and destroy personal data after expiry of the same;
  5. Refrain from collecting data unnecessarily from employees; and
  6. Provide awareness and training for all personnel in the company, especially those responsible for processing personal data.

Particular care must be exercised when dealing with sensitive personal data. Sensitive personal data refers to personal data in respect of the physical or mental health or condition of a data subject, his political opinions, his religious beliefs or other beliefs of a similar nature, or the commission or alleged commission by him of any offence (section 4).

The employer may process sensitive personal data only if necessary and must obtain explicit consent before processing the same. It must be noted that in this context, "processing" of personal data includes the collecting, using, storing or disclosing of such data.

Any consent given by the employee must be capable of being recorded and must be maintained properly by the employer. If consent is sought in a manner which is also used for some other purposes, the consent for use of personal data must be prominently presented.

CAN EMPLOYERS MONITOR THEIR EMPLOYEES WHILE AT WORK?

The short answer is also "Yes".

However, there are guidelines to follow in striking the balance between the need to ensure security of workplace and the employee's right to privacy. The PDP Department has issued a Proposal Paper No. 5/2014, namely the "Guide on The Management of CCTV Under Personal Data Protection Act (PDPA) 2010" ("CCTV Guide") to deal with queries in this respect.

This is pertinent as personal data under the PDPA has been defined as "... any information ... that relates directly or indirectly to a data subject, who is identified or identifiable from that information or from that and other information in the possession of a data user ... " This definition is wide enough to include a person's image captured under CCTV surveillance.

Although the CCTV Guide has yet to be enforced, it is advisable that an employer who installs CCTVs at the work place display a notice at the entrance to the CCTV surveillance zone that is visible to employees and visitors to inform them of the CCTV operation and the purposes for installation.

DEALING WITH ACCESS REQUESTS

One of the principles set out in the PDPA is the access principle (section 12). An employee, being a data subject, has the right to make a written request for access to his personal data and to correct them if any of the data is found to be inaccurate, incomplete, misleading or not up-to-date.

There are strict timelines which the employer must observe in dealing with data access requests. The employer must comply with the data access request within 21 days from receipt of such request. If the employer is unable to comply with the request for access, the employer must give notice to the employee detailing the reasons why compliance is not possible, and in any event, to comply within 14 days from the expiry of the initial 21 days.

The employer should make the correction and supply the employee with a copy of the data that has been corrected. There are circumstances in which the law permits the employer to refuse such request (section 36). Although the employer may charge a fee for giving access to personal data, such fee is regulated by the First Schedule of the Personal Data Protection (Fees) Regulations 2013, and range from RM2 to RM30.

CONCLUSION

Although the Employment Guideline has yet to come into force, it is clear that the PDP Department takes the view that the personal data of employees fall within the ambit of the PDPA. Accordingly, employers would be well advised to handle their employees' personal data with the same degree of care as they would with personal data of their customers, suppliers and other parties.

Originally appeared in Skrine's Legal Insights Newsletter, Issue 1/2015, March 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions