The Ins and Outs of Employment Background Checks in China
It is common for employers in China to run background checks on job applicants before making an employment offer. Required information may typically include criminal records, educational background, qualifications, and references from previous employers. This advisory provides a brief legal analysis of these checks and some suggestions to help employers comply with Chinese employment law.
Criminal records check
Chinese citizens’ criminal records are stored in government databases, which are administered by the PRC Ministry of Public Security and its local counterparts (“Criminal Record Database”). According to relevant laws and regulations, only persons without any criminal convictions may perform certain jobs,1 and applicants must obtain a Certificate of No Criminal Conviction (“CNCC”) from a local public security bureau before performing such jobs (“CNCC Jobs”).
Employers are not allowed to check criminal records directly in the Criminal Record Database. They may either require a job applicant to obtain a CNCC, or run a check via a commercial investigator.
The most common jobs for which a CNCC is required (“CNCC Job”) are director, supervisor, and senior manager.2 The law3 provides that “anyone who is under any of the following circumstances shall not take the post of a director, supervisor or senior manager of a company … he/she has been sentenced to any criminal penalty due to an offence of corruption, bribery, encroachment of property, misappropriation of property or disrupting the economic order of the socialist market economy and 5 years have not passed since the completion date of the execution of the penalty; or he/she has ever been deprived of his political rights due to any crime and 5 years have not passed since the completion date of the execution of the penalty.”
Other CNCC Jobs mainly include certain positions in insurance companies, operators of entertainment venues, security staff in certain companies, and similar positions. If a job falls within scope of CNCC Job criteria, employers must require the job applicant to present a CNCC before they make any job offer.
Chinese employment law does not explicitly state whether applicants for jobs other than CNCC Jobs may apply for a CNCC from a local public security bureau. However, based on our phone consultation with some public bureaus in Shanghai, requests for CNCCs are not limited to applicants for CNCC Jobs; anyone may apply for a CNNC, provided they submit an introduction letter from the employer together with other application documents.
Some commercial investigation companies have access to the Criminal Record Database through connections with local public security bureaus. For a service fee that typically ranges from USD $2,000 to $2,500, they will provide a job applicant’s criminal record.
Although this is a practical way to acquire the record without involving the applicant, the legality of this method is questionable, since:
- The Criminal Record Database may be deemed a “state secret” and therefore confidential. Purchasing criminal records from a commercial investigation company may violate relevant laws regarding state secrets; and
- Although Chinese law provides no clear definition of “privacy,” a criminal record may be deemed private, in which case, purchasing a record from a commercial investigator would be deemed infringement of the applicant’s right to privacy.
Therefore, commercial investigations are not recommended.
Using a criminal record
The following chart illustrates when an employer may use a criminal record to make an employment decision:
|Offering a job
|Dismissing an employee
If the job is a CNCC Job, an employer must use a criminal record to determine employment status when offering a job or dismissing an existing employee to ensure compliance with relevant laws and regulations.
If the job offered is not a CNCC Job, as far as we know, no law prohibits an employer from not employing a person with a criminal conviction. Furthermore, the employer is not obligated to provide an explanation for the decision.
If an employer discovers a prior conviction that an employee has not disclosed, and the employer had previously required the disclosure, the employee can be dismissed, since nondisclosure can be deemed fraud, thus voiding any labor contract.
If an employee has disclosed a prior criminal conviction, an employer may not dismiss the employee solely because of the conviction, unless the employee holds a CNCC Job.
Educational background and qualifications checks
It is reasonable for an employer to require job applicants to meet reasonable education and qualifications standards.
Employers may request relevant diplomas and/or certificates to verify educational backgrounds and qualifications. Of course, diplomas and certificates might be counterfeit, and if necessary, employers may verify their authenticity.
Employers can check job applicants’ higher education, whether completed in China or abroad, via a website designated by the PRC Ministry of Education. In the case of education completed outside of China, an employer may require a job applicant to present a certificate issued by the ministry confirming the applicant’s education.
Checking qualifications depends on what they are, but, as in other countries, a check is often easily done. Typically, associations or institutes issuing employment qualifications—for example the Chinese Institute of Certified Public Accountants—publish the holder’s name on their websites.
It is a general and lawful practice in China for an employer to make an employment decision based on a job applicant’s educational background and qualifications.
References from previous employers
With a job applicant’s consent, an employer may ask for a reference from a previous employer and use the reference to help decide whether to employ the applicant.
It is important to obtain the job applicant’s prior written consent before initiating the reference check. Without a clear definition under Chinese law, “privacy” may be broadly interpreted to include prior employment performance. Therefore, asking for a reference from a previous employer without the applicant’s prior consent may be deemed an infringement on the applicant’s privacy.
Sharing an applicant’s information
After running background checks, an employer will typically want to share a job applicant’s or an existing employee’s information with affiliates, such as its parent company or subsidiary, to facilitate internal human resources management.
As noted before, there is no clear definition of privacy. If interpreted broadly in court, privacy may include a person’s criminal record, educational background, qualifications, and previous employment. If an applicant’s personal information is protected as private, it can not be disclosed to a third party without the applicant’s consent.
Even though a court may be tolerant when an employer shares a job applicant’s or an existing employee’s information with its affiliates, it is strongly recommended that employers receive written consent from the job applicant before sharing the information.
- Some jobs may only be performed by people without a criminal conviction.
- Employers must check a job applicant’s criminal record before offering a CNCC Job.
- Employers may check a job applicant’s criminal record by requiring the applicant to provide a CNCC.
- Employers should avoid checking criminal records through a commercial investigation company.
- Employers may use information received via a criminal check to determine employment.
- Generally, it is lawful for an employer to check a job applicant’s educational background and qualifications, ask for a reference from the applicant’s previous employer, and make an employment decision based on the result of these checks.
- It is important to obtain a job applicant’s written consent before initiating a reference check with the applicant’s previous employer.
- An employer may share background-check information with its affiliates providing it has obtained the job applicant’s prior written consent.
1 Different jobs have different requirements. It is not always the case that applicants cannot have any criminal conviction.
2 "Senior manager" refers to the manager, vice manager, person in charge of company finance, and the secretary of the board of directors of a listed company, as well as any other person as set forth in the articles of association. (Article 217 of PRC Company Law).
3 Article 147 of PRC Company Law.