Risks and prevention regarding the background investigation of “Employees”

The background investigation of “Employees” involves two circumstances. An employer requires an investigation of its candidate, or an employer is required to provide information of its former employee. Such investigation involves employees’ personal information which is sensitive. Recently, with the release of the “Personal Information Protection Law”, HRs become more alert to such investigation.

Here, we would like to talk about the risks related to such investigation, and the relevant prevention measures.

First, when an employer requires an investigation of its candidate, the following issues are worth to be noted.

(1) What is the source of the relevant information? If the source is improper, the employer may face a huge legal risk. For example, in 2019, the Guangzhou police investigated a “Crime of Infringement upon Citizens’ Personal Information” case involves “猎头搜” website, and finally arrested more than 130 criminal suspects (including headhunters and HRs of well-known companies). More than 200 million pieces of citizens’ personal information were found in the investigation. The website has more than 60,000 registered users who would gain points by uploading some companies’ internal contact information, and candidates’ resume; and then use those points to download other companies’ internal contact information, and candidates’ resume uploaded by other uses. It seems as win-win cooperation, however, such behavior is a crime. The appropriate method is to inform the candidate in advance, and obtain the consent of the candidate on the source of his personal information.

(2) Whether the scope of personal information is necessary and reasonable? The “Personal Information Protection Law” clearly stipulates that “the collection of personal information shall be limited to the minimum scope for achieving the purpose of processing and it is not allowed to excessively collect personal information.” The purpose of conducting such investigation is to get to know the candidate’s previous employment period, position, job content, authority of the position, performance, etc., and to confirm whether there is any false experience. Therefore, such investigation shall be restricted in the above-mentioned scope.

(3) How to deal with the personal information collected? An employer shall pay attention to those aspects, which are, a) such information shall be only known to the relevant personnel of the HR department and the relevant superiors of the candidate’s proposed position; and b) such information shall not be disclosed to any third party without authorization, regardless of whether the employer is paid or not.

Second, when a HR receives an investigation invitation, it is recommended to confirm the following issues before providing relevant information.

(1) The evidence of the former employee’s consent. For example, there is evidence indicating that an employee has given a written consent to the employer when he was on-board, and the consent states that the employer could disclose relevant personal information provided by the employee for the use of such investigation after the labor contract is terminated; or an employee has given a written consent regarding similar content when the labor contract is terminated. If neither is available, it is recommended to obtain a separate consent of the former employee; otherwise, such cooperation on background information is still risky.

(2) The scope of former employees’ personal information. Unless the scope has been agreed by the employer and employee, normally the employer should restrict the scope as mentioned above.

(3) It is worth to be highlighted that in order to avoid the trap of counterfeit investigation, before providing personal information of former employees, it would be better to check the identity of the personnel who is conducting the investigation, such as whether the contact telephone number or email address is the official number or address of the potential new employer, or the employer could confirm with the former employee directly.