Can job seekers choose to "select and answer" during an onboarding review conducted by the company?

Reading Guide

According to the Labor Contract Law, employers have the right to learn about the basic information of workers that is directly related to the labor contract, and workers should explain truthfully. However, in reality, job applicants have concerns about whether there is a basis for the boundaries of information collection, the transparency of the review process, and the relevant evaluation criteria.

“During the screening, I’m not only supposed to get calls from my friends nearby, but you also have to check with my graduate advisor.”

“I had a conflict with my boss before—will it affect me?”

“If an employer wants to contact my former coworker to learn about my situation, can I refuse?”

……

As the hiring season is underway, reporters found through interviews that, during the recruitment process, employers usually review candidates’ identity, educational background, health status, and the status of their labor relationships, as well as their past job performance for candidates they intend to hire, in order to avoid potential employment-related risks. However, job applicants are concerned about whether there is a basis for the boundaries of information collection, the transparency of the review process, and the relevant evaluation criteria.

Is an onboarding screening a necessary step in employer recruitment? Do job applicants have the right to refuse to undergo screening? When employers conduct onboarding screening, what procedures should they follow?

If Screening Is Not Strict, Employment Risks Can Arise

“According to the Labor Contract Law, employers have the right to learn about the basic information of workers that is directly related to the labor contract, and workers should explain truthfully.” Chen Yijing, a lecturer in the Department of Labor and Social Security Law at the Law School of the China Institute of Labor Relations, said that onboarding screening is a key step for companies to avoid risk. If onboarding screening becomes a mere formality, companies may face risks of legal liability arising from inaccurate identity and credentials, health conditions that do not match the position, and disputes triggered by being bound by non-compete restrictions.

Reporters reviewed publicly available cases and found that, in judicial practice, some employers, due to inadequate onboarding screening and neglecting verification of key information, have caused disputes and assumed liability for compensation.

When a Shenzhen technology company was recruiting Hu, a core R&D employee, it did not screen whether Hu and his former company had signed a non-compete agreement. However, the projects Hu participated in after joining were highly similar to those of his former company. The former company sued the Shenzhen technology company for compensation losses, claiming that Hu violated the non-compete agreement and that the technology company was at fault. The Shenzhen Intermediate People’s Court, based on relevant provisions of 《Shenzhen Special Economic Zone Regulations on the Protection of Enterprise Technical Secrets》, held that the company knew or should have known but failed to fulfill its screening obligations. It determined that Hu, who left a company with a competing relationship and had non-compete obligations, should bear joint liability for the RMB 400,000 non-compete liquidated damages that he should pay.

In another case heard by the Jiangsu Province Nantong Intermediate People’s Court, a security company in Nantong hired Ji, who was over 60 years old. The parties did not sign a written employment contract and did not arrange a pre-employment health check. One early morning, while on duty, Ji suffered sudden cardiac death with a cardiogenic cause. The court held that when Ji was hired, he was already over 60 years old and thus belonged to the category of elderly laborers. The company should have conducted a pre-employment health check to rule out whether there was a health risk that made him unsuitable for the job. Therefore, the court found that the company failed to fulfill its basic health screening obligations toward the elderly laborer it employed, and ultimately ruled that the company should bear liability for damages.

“According to relevant legal provisions, when recruiting, employers have the right to conduct necessary screening of workers’ identity and age, qualifications and education, labor relationship status, physical health conditions, and employment procedures for special industry practitioners.” Chen Yijing said that if the screening goes beyond a reasonable scope—such as involving personal property, marital and dating status, and so on—job applicants may refuse, and employers may not refuse to hire them on that basis.

Background Checks Entrusted to Others May Lead to Infringement or Joint Liability

“Now, more and more companies are requiring background checks before onboarding.” Chen Lin (a pseudonym), who heads a human resources company in Suzhou, Jiangsu Province, said that some companies, when recruiting management positions with work experience, often require background checks on workers’ work history and work performance. “The content usually includes work performance and reputation, unfavorable records, and whether past salaries are authentic. The main purpose is to select employees who truly meet the hiring requirements and can develop stably.”

In recent years, in the recruitment market, in order to reduce employment risks, it has gradually become an important part of employers’ onboarding screening for companies to commission professional institutions to conduct background checks on job applicants.

Ms. Zou, who works at a background-check company in Shanghai, told reporters that background checks commonly fall into three types in the recruitment market: “The first type is basic information, including identity verification, unfavorable records, UnionPay blacklists, civil litigation and case lookup, and personal restriction on high consumption inquiry. The second type is verification of educational background and work history. The third type involves evaluations of an individual’s work performance.”

At the same time, disputes have also arisen over the methods and scale of collecting information for background checks. In judicial cases, there are also job applicants who have sued due to allegedly inaccurate evaluations of their lifestyle and conduct in background check reports, and the courts determined that the background-check company constituted an infringement of reputation rights.

Li Yi, partner lawyer at Junze Jun Law Firm, said that for critical positions, after obtaining the worker’s written authorization, employers may conduct background checks on that person’s work history, work performance, and so on. “In the entrusted contract, the employer should clearly specify the obligations of the background-check institution, including the duty to verify information, the duty of confidentiality, and liability for infringement. The background-check institution should be required to take responsibility for the authenticity and legality of the information obtained. If the employer does not clearly limit the scope of the investigation when commissioning the background check, or if it does not carry out necessary supervision of the investigation process, and fails to fulfill a reasonable duty of review when there is obvious overreach or infringing content, leading to infringement consequences, the employer may constitute joint tortfeasors with the background-check institution and may need to bear joint liability.”

The Screening Content Should Be Directly Related to the Labor Contract

In a case involving onboarding screening disputes that the Jiangsu Province Kunshan People’s Court concluded, even though the party involved, Yang, was still employed by another company, he passed an interview at a technology company. Because Yang could not provide a resignation certificate, that technology company required Yang to provide the phone number of the company where he had previously worked for a background check. Yang repeatedly refused and was unable to provide it. Ultimately, the company responded that the background check could not be completed and a contract could not be signed. Yang believed he had been “left hanging,” sued for compensation of RMB 10,000. The court, after trial, held that the failure to be hired was because Yang concealed his current employment status and refused to cooperate with the background check. The company had no fault, and the court dismissed the claims.

Reporters learned through interviews that during onboarding screening, job applicants often have concerns about background checks conducted by the employer through former employing companies. So, do job applicants need to cooperate with this type of onboarding screening by employers?

“‘The boundary of “cooperating with screening” is “directly related to the labor contract.”’ Employers need to, based on the situation of the position, clarify the scope of the position, and inform job applicants of the screening items, purposes, and basis. If the job applicant refuses to cooperate, the employer may, on that basis, decide not to hire them.” Chen Yijing said that onboarding screening must be legal and compliant, and must respect personal privacy. If a job applicant discovers an act of infringement during the screening process, they can file a complaint with the labor supervision department, apply for labor arbitration, or bring a civil lawsuit.

Li Yi believed that information obtained from the original employer about the job applicant’s work performance, professional competence, team collaboration, and other content directly related to the job requirements, and provided the information sources are verified as reliable, can be used as a reference for hiring. However, at the same time, there is also a need to be alert to investigation content exceeding the scope authorized by the job applicant, and to infringement risks that may arise if sensitive information obtained is leaked to unrelated persons or is used for purposes other than recruitment. “When employers conduct onboarding screening, they should follow the principles of relatedness and the least necessary. After the screening procedures are completed, the employer should properly handle the results of the screening.”