Sancharini Panda
Confucius said, “Beware of him who is too good to be true”.
In the cutthroat world of business, where reputations and bottom lines hang in the balance, ensuring the integrity of the workforce becomes paramount. With a billion-plus talent pool, how can you be sure you’re hiring the right person? The key is to look beyond the resume and conduct thorough background checks. Read on to explore the intricacies of employee background checks in China, including the types, legalities, and more.
Are Background Checks Legal in China?
Yes, background checks are lawful in China. While there’s no specific law mandating or prohibiting them, strict adherence to data privacy regulations is crucial. Sectors like finance, healthcare, and government, which handle sensitive information, heavily rely on employee background checks in order to assess the integrity of prospective employees.
Non-Chinese nationals or people with overseas experience are often required to go through such scrutiny. However, employers must always seek permission from candidates before conducting background checks and ensure that collected information is directly job-related.
Common Background Checks in China
Conducting background checks is a crucial step in the hiring process, specifically in the competitive job market of China. Therefore, understanding the different types of it can help employers make better hiring decisions. Here are the most common types of background checks conducted in China and some basic details about each of them:
| Type of Check | Details |
|---|---|
| Education Check (to verify the academic achievements claimed by a candidate) | Employers basically contact universities or relevant institutions to verify degrees, diplomas, certifications, dates of attendance, and course completion status. Specific grades or transcripts might be required depending on the job role, all while adhering to the Chinese Personal Information Protection Law (PIPL). |
| Reference Check (to confirm job titles, dates of employment, and reasons for leaving) | Involves reaching out to a candidate’s past colleagues or supervisors in order to inquire about a candidate’s professional conduct. However, employers must focus on factual details and avoid subjective performance evaluation. |
| Criminal Background Check (to determine whether a candidate has any history of criminal convictions) | Employers may ask candidates to obtain a Certificate of No Criminal Conviction (CNCC) from local public security offices, to verify their past criminal records. |
| Right-to-work Check (to ensure candidates possess the legal authorization to work in China) | Involves verifying a candidate’s work permit while adhering to the regulation on the Administration of Employment of Foreigners in China. |
Additional Background Checks (Performed Selectively Depending on the Role and Company Policy)
Apart from the types of checks mentioned above, additional checks may be conducted based on factors including the role, company policy, and the sensitivity of the industry an employer is hiring for. Let’s take a closer look at such additional checks:
| Type of Check | Details |
|---|---|
| Social Media Check (to assess a candidate’s social interactions and conduct) | Employers typically review the social media profiles of a potential hire and restrict the check to publicly available information. |
| Credit Check (to assess the financial probity of candidates) | Required for candidates applying for positions involving financial responsibility. However, the employers must disclose its purpose. |
| Financial Regulatory Check (to ensure the candidate doesn't have a history of financial misconduct) | Employers verify a candidate’s financial conduct and past regulatory adherences. It may also include collaboration with relevant financial regulatory bodies in order to ensure the candidate meets industry standards and regulations. |
| Adverse Media Check (to ensure the candidate does not have any adverse public image that can impact their suitability for the job role) | Involves searching for negative news articles, political affiliations, or any other public information about the candidate. It is similar to social media checks but has a broader purpose and scope. |
| Conflict of Interest Check (to ensure a candidate doesn't have conflicting business interests or relationships that could pose a risk to the company) | Employers not only assess potential conflicts of interest by reviewing candidates' previous business engagements, relationships, but also check for any financial interests that might affect their ability to act impartially. |
Please note that not all checks listed above are conducted for every position. As a matter of fact, the type and depth of employee background checks will depend on the specific role, and company policy, and each requires strict compliance with Chinese data privacy laws.
Understanding the Need: Why Background Checks Matter in China
In a dynamic and diverse job market like China’s, ensuring the reliability and integrity of potential employees is more critical than ever. With a rapidly evolving business landscape and stringent regulations, background checks are not just a formality but a strategic necessity. Let’s delve deeper into understanding the need for employee background checks in China:
Mitigating risks and legal liabilities: Comprehensive background checks demonstrate due diligence on the employer’s part, significantly reducing the risk of lawsuits arising from negligent hiring. By thoroughly vetting candidates, employers can avoid hiring individuals with histories that could pose risks to the company, and also protect the organization from potential legal repercussions and financial losses.
Compliance with regulations: Companies operating in China or having overseas operations can align their hiring processes with international background screening standards and practices. This not only ensures consistency across global operations, but also helps in meeting compliance requirements.
Building a trustworthy workforce: Background checks verify a candidate’s identity, previous employment, and references, fostering a secure and reliable work environment. Knowing that employees have undergone thorough background checks can enhance overall team morale and productivity.
Reducing employee turnover: Thorough background checks can help in hiring the right candidates, which can reduce the likelihood of early-stage employee turnover. This also ensures a more stable and experienced workforce, reducing the costs and disruptions associated with frequent hiring.
Therefore, by incorporating employee background checks into the hiring process in China, employers gain valuable insights that empower them to make informed decisions, minimize risks, and ultimately build a strong and reliable workforce that propels their business forward.
Legal Considerations for Conducting Employee Background Checks in China
While no single law governs employee background checks in China, several statutes and regulations shape how employers can conduct them. Therefore, understanding these legal considerations is crucial for ensuring compliance and fostering a fair hiring process. Here are some key legal considerations to keep in mind:
Obtaining consent: Written consent from the job applicant is essential before collecting any personal data for background checks. Thus, employers must handle each stage of the background check process with care to respect individuals’ privacy rights.
- Definition of personal data: The Cybersecurity Law broadly defines personal data to include names, addresses, ID numbers, medical records, genetic and biometric information, bank details, transaction records, and more. Therefore, employers should be aware of the privacy restrictions applicable to this wide range of data types in order to ensure adherence to relevant privacy clauses.
Compliance with data privacy regulations: China’s PIPL dictates how organizations should collect, store, and use personal data. While conducting background checks, employers must adhere to these regulations by ensuring they gather information relevant to the position.
Restrictions on information gathering: In China, there are specific restrictions on personal information gathering that apply to background checks. Overall, some key considerations in this context include:
- Criminal background checks: Employers cannot directly access the National Criminal Record Database. Instead, they must rely on the candidate to obtain a “Certificate of No Criminal Conviction” from local authorities.
- Discriminatory practices: Background checks exceeding job relevance or inquiries about personal beliefs, family status, or protected characteristics like disability or sexual orientation are strictly prohibited. Besides, employers should ensure that all inquiries and checks are job-related and not discriminatory based on.
Privacy violations: Under the Tort Liability Law, individuals can file lawsuits for privacy violations. Therefore, employers must handle personal information with the utmost care to avoid legal repercussions.
Criminal liability for data sharing: The Criminal Law of China prohibits the sale or provision of personal information with penalties including imprisonment of up to seven years (in severe cases). Thus, employers must be cautious when sharing background check results, especially with overseas parent companies or their subsidiaries.
Awareness of employers’ rights: Article 39 of China’s Labour Contract Law (LCL) states that the employers are entitled to unilaterally terminate the employment contract in cases where the employee is found to have seriously violated the employer’s internal regulations, or where the employment contract signed by the employee is through deception or coercion. Employers conducting background checks in China must be aware of such provisions to be able to use them effectively, in case of any dispute/discrepancy.
Key Takeaways
- In a densely populated country like China, the abundance of qualified talent makes the search for the perfect candidate challenging. Therefore, background checks are essential for identifying reliable candidates from a vast pool and ruling out the possibility of hiring someone with fabricated credentials.
- Conducting background checks in China is legal but it requires adherence to data privacy laws, obtaining explicit consent, and ensuring the information gathered is job-relevant.
- Common background checks in China typically include verification of education, reference, criminal history, right-to-work, etc. Depending on the role and company policy, additional checks such as social media and credit history may also be conducted.
- Employers must comply with all relevant laws governing the collection, storage, and use of personal data in order to avoid legal liabilities and penalties.
- Thorough employee background checks mitigate risks, protect the organization from financial losses or legal repercussions, and also build a trustworthy workforce.
