Asked by: HR of Retail Industry?
Hi lawyer. My question is about the laws and regulations on employer’s right of background investigation before recruitment. For the candidates to be recruited, according to relevant laws, could employer take background investigation about the candidates’ education, remuneration, previous work experience, work performance, criminal records, etc?
Answered by: RDL-Shanghai, Lawyer Freddy Huang?
First of all, there is no specific definition about “background investigation”. Employer’s right for background investigation is generally recognized as deriving from Article 8 of Labor Contract Law : “The employing unit has the right to acquire the basic information of the worker which is directly related to the labor contract.”
Secondly, the investigation shall be limited to the matters directly related to the labor contract. For example, education, work experience, salary or other remuneration, work performance and departure reason are all allowed in background investigation. However, investigating for any content related to personal privacy is illegal, such as marriage condition and illness(illness condition is not allowed in investigation except necessary requirement for special positions).
Especially, the investigation on criminal records generally requires employee to provide a non-criminal record certification on his/her own, while the police would not assist in investigation to any individual or organization(except authority like people’s court or government administration department). Actually, although there is no specific prohibition for employer’s investigation on criminal records, if employer rejects the employee due to his/her previous criminal records, it may be recognized as discrimination in recruitment. Therefore, please be discreet in taking this investigation way.
Finally, as work performance is related to performing the labor contract, employer has the right to collect information on it. The investigation shall be in an open way, but in practice, previous employers may be sensitive about it and refuse to provide any information. Investigation through other colleagues is not prohibited, but the feedback may be subjective which therefore needs employer’s judging on the truth.