Inquire about past income? Where is the boundary of employers' background check

Before Dong Xing could complete his resignation procedures, the new owner asked the old owner about his salary level. Later, the "old employer" did not renew the labor contract after it expired, and the "new employer" refused to hire him on the grounds of falsely reporting his salary level. Dong Xing, who jumped the job and ran into a wall, applied for labor arbitration on the grounds that his new employer, a bank in Shenyang, had violated his personal privacy.

On August 30th, Dong Xing received an arbitration notice, and his arbitration application was rejected due to reasons such as the absence of labor relations and his signature on the relevant background investigation consent form. "The relevant authorization form does not specify the investigation of salary situation. Where is the boundary of background investigation?" Dong Xing questioned.

Background check is a verification conducted by the employer on the candidate to be hired, usually to understand and verify the candidate's education, work experience, and performance, determine whether there are significant false statements, and confirm whether they are suitable for the position to be hired.

However, it was learned through interviews that some employers have collected and excessively used personal information when conducting background checks on workers, which is suspected of infringing on the legitimate rights and interests of workers.

01

After inquiring about past income, the company refused to sign a labor contract

Dong Xing used to work as a customer manager at a bank. In June 2022, before the expiration of the labor contract signed with the bank, Dong Xing applied to become a candidate for the position of General Manager of a community bank at the Shenyang branch of a certain bank. Before joining, the HR manager of the "new employer" told Dong Xing to conduct a background check on his education, career experience, etc., which is a routine process. Dong Xingbian signed "Agree" on the relevant authorization form.

"When asked about my annual salary during the interview, I replied that it was 200000 yuan before tax, which is also my average salary in the past 5 years. As a result, after investigation by the employer, it was found that my annual salary was 120000 yuan last year, which is seriously inconsistent with the situation previously reported. Dong Xing also stated that the salary level reflects the work ability of a customer manager.".

According to the Labor Contract Law and the Implementation Regulations of the Labor Contract Law, employers have the right to understand the basic information directly related to the employee and the labor contract, and the employee should truthfully explain it. The employer shall establish a register of employees for future reference, which shall include the name, gender, citizenship number, registered residence address and current address, contact information, employment form, employment starting time, labor contract duration, etc.

In addition, according to the Personal Information Protection Law, personal information processors are only allowed to process personal information when it is necessary to enter into and perform contracts to which an individual is a party. The processing of personal information should have a clear and reasonable purpose, and should be directly related to the processing purpose, adopting a method that minimizes the impact on personal rights and interests. Dong Xing's lawyer, Gao Yu, believes that inquiring about the previous salary level is not related to the upcoming labor contract, and "even with authorization, it cannot be collected."

"This is a 'secret investigation', not a 'back investigation'." The reporter contacted Dick, a background investigator working in Shenyang, and he introduced that background investigation companies, as entrusted third parties, usually clearly define the rights, obligations, and responsibilities of protecting personal information, obtain authorization for background investigation in advance, ensure that employee information is obtained through legal means, and fulfill confidentiality obligations.

02

Background checks are becoming increasingly common, with some touching the "red line"

The reporter noticed that background checks have emerged with the increase of market entities and the acceleration of talent flow, and have become increasingly frequent in the recruitment process.

Why do employers conduct background checks? Dick introduced that the background survey first appeared in foreign enterprises, and now it is common in enterprises in the Internet, finance, medicine and other industries. In recent years, due to the frequent occurrence of job seekers falsifying their resumes, more and more companies have begun to investigate the background of potential hires, leading to the emergence of the background check industry. "In addition, the cost of a single background check is only a few hundred yuan, which is much lower than the dismissal cost of hiring resume falsifiers, which is also the reason why background checks are becoming increasingly common," Dick said.

The Personal Information Protection Law stipulates that the processing of personal information shall follow the principles of legality, legitimacy, necessity, and good faith. The reporter found that some employers did not follow these principles and even exceeded the legal "red line" when conducting background checks.

Li Shu once applied for the position of Sales Manager at a commercial service company in Dalian. To confirm past performance, the company conducted a background check on Li Shu after obtaining her written authorization. However, upon learning that she had undergone a stomach resection surgery, the company believed that Li Shu was not competent for the high-intensity position of sales manager and refused to sign a labor contract with her. At the same time, Li Shu's personal information was not kept confidential, resulting in information leakage.

"I have hereditary obesity, and the surgery is to improve my quality of life, not related to work." Li Shu then filed a lawsuit in court and ultimately won the lawsuit.

According to the Personal Information Protection Law, sensitive personal information includes biometric identification, religious beliefs, specific identities, medical and health, financial accounts, travel trajectories, and other information. Personal information processors can only process sensitive personal information if it has a specific purpose and sufficient necessity, and strict protection measures are taken.

03

It should be standardized and investigated in accordance with job requirements

So, what information about workers belongs to the basic situation directly related to the labor contract? Meng Yuping, a legal expert at the Liaoning Provincial Labor Dispute Research Association, stated that there is no clear provision for this in the current labor laws and regulations.

"Some employers, after conducting background checks, refuse to sign labor contracts on the grounds that the candidates are not competent for their positions. In addition, because the candidates do not have a factual labor relationship with the employer and have not signed a labor contract, they cannot apply for labor arbitration and can only hold the company responsible for contractual negligence. In practice, workers often lose lawsuits due to insufficient evidence." Meng Yuping explained.

Meng Yuping suggested that the labor administrative department should make institutional arrangements and norms for background checks. Firstly, it is necessary to seek written authorization from job seekers to conduct investigations without infringing on personal and property safety, as well as personal privacy. Secondly, a reasonable investigation should be conducted based on the job position and job requirements. Otherwise, even if the worker has authorized it, it still constitutes infringement. Thirdly, the personal information obtained can only be used to determine whether the employee meets the employment requirements, and cannot be used or disclosed for other purposes.

"Conducting a background check is to verify the authenticity of the educational background, resume, and other information provided by job seekers, and to assist in reducing employment risks. Background check professionals are responsible for verification, not private detectives." Dick explained that in terms of protecting the information of interviewees, background check companies have strict guidelines, generally using four colors: green, blue, yellow, and red to remind clients, with red indicating serious falsehood, yellow indicating suspicion or partial issues, blue indicating minor falsehood, and green indicating factual compliance.

Gao Yu believes that companies should purchase legitimate and compliant third-party background investigation services, rather than "covertly soliciting.". More importantly, the investigation content should be reasonably set up, and these contents should be directly related to the performance of the labor contract. When seeking opinions from job seekers, it is not advisable to ask them in a general manner. Instead, they should inform each individual of the information that needs to be investigated and ask them to confirm, especially when it comes to sensitive personal information.

"Integrity is the foundation of a person's foundation in the workplace," Dick reminded. He once encountered a case where the investigated candidate had a criminal record and voluntarily informed the company. The company accepted it, but it did not affect subsequent hiring. "The company values the integrity of the workers, not 'flaws'."