Conducting Employee Background Checks in China

The first step in researching an applicant’s employment background is to rely on information provided by the applicant himself. Be sure to obtain the applicant’s written consent before contacting a previous employer in order to avoid a possible breach of China’s nebulous data privacy laws.

Since the applicant’s previous employer is also bound by privacy laws, it is important that you have the applicant contact these references in advance to let them know to expect an inquiry from you. Another way of handling this situation is to obtain the applicant’s written consent and present it to the applicant’s previous employer before asking any questions.

Professional Qualifications

If the applicant claims to possess a professional qualification, such as a CPA certificate, you might be able to confirm this by checking the website of the relevant domestic professional association, such as the Chinese Institute of Certified Public Accountants.

Digging Deeper

Checking references might not be enough for certain sensitive positions:

An applicant might, for example, have connections with companies that they didn’t mention during the application process due to a conflict of interest with a previous employer (his own company set up to compete with his previous employer, for example).

The applicant may have been involved in civil or criminal litigation, either as a party or a non-party.

If the applicant has served in an executive position, scandals may have arisen on his watch that, although they may not directly implicate him, speak volumes about his ability to ensure legal and regulatory compliance by his subordinates.

Some of the information you will need to form a comprehensive evaluation of the applicant might be found in publicly available corporate and litigation records (in Chinese). Gathering other sorts of information may require sophisticated investigative resources to avoid violating PRC privacy laws.

Obtaining an Applicant’s Criminal Record

Keep in mind that occupants of certain positions in China are required by law to have a clean criminal record. In this case, you are legally required to confirm this before you hire the applicant by obtaining a Certificate of Non-Criminal Conviction (a “CNCC certificate”).

It appears that an employer may also require a CNCC certificate as a condition for hiring an applicant even for a job in which a CNCC certificate is not required. To obtain a CNCC certificate, the applicant himself must request it from the local security bureau by presenting an introduction letter from a potential employer (you in this case). You cannot obtain this document on your own.

Online Research

You might be able to find a criminal record for an applicant by searching the Internet. As long as the information has been made publicly available, your potential liability under PRC privacy laws for acting on it is minimal.

You might discover an applicant’s criminal record, for example, by searching open court records, since this information is publicly available in China. Do not assume that an applicant has a clean criminal record, however, simply because you couldn’t find a criminal record through online research.

Using an Agency

Some agencies advertise their ability to provide a CNNC upon request by exploiting claimed access to the criminal record databases of the Ministry of Public Security. Given the ambiguity of China’s data privacy and “state secret” laws, however, utilizing one of these agencies could put you at risk for civil or even criminal liability. Don’t risk it.

Dismissing a Current Employee Based on a Pre-Existing Criminal Record

Whether you can dismiss an employee, if you discover a pre-existing criminal record after you hire him, depends on the circumstances:

If the job is a CNCC job, not only are you permitted to terminate the employee, you must terminate him – and you could get into trouble for hiring him in the first place.

If the job is not a CNCC job, whether you can terminate the employee depends on whether he disclosed the conviction during the hiring process. If he did, you cannot legally terminate him for this reason alone

If the job is not a CNCC job and the employee failed to disclose a prior conviction, you can only terminate him for non-disclosure if you required the disclosure (and he failed to comply with this requirement) during the hiring process.

Legal Restrictions Affecting Background Checks

Strictly speaking, no single Chinese law deals specifically with the restrictions placed on background checks of prospective employees. Many legal restrictions exist, however, and these restrictions are spread throughout a large patchwork of statutes and regulations, including:

The Tort Liability Law, which allows an individual to file a lawsuit over “privacy” violations.

Article 253 of the PRC Criminal Law, which criminalizes the sale or provision of the personal information of others if “the circumstances are serious.” Imprisonment of up to seven years can be imposed. This law could potentially generate criminal liability even for an employer who, for example, shares the results of a background check with his company’s overseas parent company or subsidiary.

The Cybersecurity Law defines “personal data” as information that can identify a person either on its own or together with other information. Personal data can include a person’s name, address, telephone number, date of birth, national ID card number, medical records, genetic and biometric information, bank account data, transaction records, website account and transaction information, and even personal consumption habits.

Do not assume that privacy restrictions apply only to the above-enumerated types of data, either under the Cybersecurity Law or under any other law. You should obtain written consent from a job applicant before sharing any information about him, and you should proceed with care at every stage of a background check.

This article was first published on our partner, IPO Pang’s, blog: https://www.ipopang.com/blog/