Case Review

Company A intends to hire Xiao Li, who came to apply for the job. According to the onboarding process of Company A, a background check on the candidate's previous work experience is required. A company contacted Xiao Li's previous employer, B company, and B company informed Xiao Li of various information about his employment. In addition, B company also informed A company that Xiao Li was fired from the company due to fighting. Xiao Li was ultimately not hired by Company A. After learning about it, Xiaoli was very angry and believed that Company A and Company B had investigated and disclosed his personal information without authorization.

Lawyer analysis

Background checks for employment are very common in the job search process. Generally, employers will verify the job information provided by applicants by contacting their graduation school, previous company, etc., as a reference for whether they will be admitted.

According to Chinese laws, the personal information of natural persons is protected by law. When processing personal information, the principles of legality, legitimacy, and necessity should be followed, and excessive processing is not allowed. The background check itself does not necessarily lead to infringement of personal information rights, but its legality depends on the scope, method, purpose, and compliance with laws and regulations of the investigation. Generally speaking, a legal background check for employment should meet the following conditions.

1、 Principle of Necessity

Units should strictly control the scope of information collection, and the investigation content should be directly related to the position, such as work experience, education, skill status, and whether there is a non compete obligation. Personal information unrelated to work (such as family background, religious beliefs, health status, etc.) shall not be collected. Prohibit excessive collection of information.

2、 Informed consent

Before conducting a background check, it is necessary to clearly inform the applicant of the purpose and scope of the investigation, such as previous work experience, job level, etc. It should not be generalized as requiring the investigation of all information, but rather the specific investigation content should be specified. In addition, it is necessary to clarify the investigation methods to be adopted, such as telephone interviews, on-site visits, system verification, etc. And they should obtain written authorization from themselves.

3、 The legality of obtaining information channels

Units conducting background checks to obtain personal information should do so through legal channels, such as government open information platforms, judicial document websites, academic information websites, and other official channels. And authorized by myself to verify work experience with the previous employer.

In addition, after obtaining relevant personal information legally, the unit also has a duty of care. For example, the unit should do a good job in information confidentiality and cannot disclose background investigation information to other unrelated third parties. At the same time, attention should be paid to the reasonable use of survey results, which can only be used to determine whether the candidate meets the entry requirements and cannot be used for other purposes.

For units undergoing background checks, it is necessary to verify with the individual, confirm the identity of the investigators, review authorization documents, disclose information within the scope of authorization, and prohibit the disclosure of confidential information.

In summary, background checks for employment must strictly adhere to the principles of "legality, legitimacy, and necessity", and respect individuals' rights to information and consent. Otherwise, crossing the line or violating regulations may result in administrative penalties or civil compensation.