China: Employers are Empowered to Check the Criminal Records of certain Employees and Candidates
The Ministry of Public Security released the Working Rules for Public Security Departments to Handle Criminal Record Checks (“Working Rules”), which entered into force as of 31 December 2021. According to the Working Rules, the employer can check the criminal records of certain employees and candidates (for hire), provided that such inspection complies with the employment prohibitions prescribed in the laws and regulations.
When the employer applies to check criminal records, it shall submit a letter of introduction, a valid ID certificate of the personnel handling the request, a record checking application form sealed with the employer’s official stamp, and other relevant information that can prove the subject is the employee of, or is expected to be hired by, the employer.
The record checking application form shall explicitly state the specific legal provision that supports such scrutiny. In addition, the Working Rules also prescribe that relevant organisations and individuals shall keep the criminal information obtained through the examination, strictly confidential, and shall not spread or use such information for other purposes.
Key Action Points for Human Resources and In-house Counsel
The Working Rules provide the employer with a useful tool to review the criminal records of certain employees or candidates. For example, pursuant to the PRC Company Law, individuals who have been criminally convicted for certain crimes, such as corruption or bribery, are prohibited from being appointed as director, supervisor or senior executive of the company. By following the Working Rules, employers can now independently peruse and verify the criminal records of senior staff members.