case

Appellant Wu filed an appeal to the Intermediate People's Court of Guangzhou, Guangdong Province, against the civil judgment (2021) Yue0112 Minchu 10958 of the Huangpu District People's Court of Guangzhou, Guangdong Province, due to the dispute with the appellant Kang Mou and the right to privacy.

Wu joined a Guangzhou Auto Parts Co., LTD. (hereinafter referred to as X Company) as a material control supervisor. Kang is the HR manager of X Company. Wu sent his resume to X company when he joined the company, showing that Wu had worked in FS Motor (Shenzhen) Co., LTD., and an electronics Co., LTD., Dongguan City (hereinafter referred to as Y Company).

Later, Wu applied for arbitration to the Huangpu District Labor Dispute Arbitration Commission of Guangzhou, asking X company to pay wages and compensation. During the arbitration hearing, X Company submitted its call recording to Y Company and Shenzhen FS Motor Co., Ltd. personnel, that is, the recorded evidence submitted by Wu in this case.

Wu believes that without his consent, he privately went to the unit (Y company, Shenzhen FS Motor Co., LTD.) to conduct a background investigation, which violated the right of personality, the right of name, and the right to privacy, and had a deep impact on Wu's personality.

Verdict

The courts of first and second instance both held that the right to privacy is the personal right of citizens to enjoy the peace of private life and the protection of private information in accordance with the law, and not to be illegally invaded, known, used, and disclosed by others. The right to privacy of citizens is protected by law, and infringement of the right to privacy of citizens shall bear tort liability. The infringement of privacy should have the general elements of tort liability, that is, the four elements of illegal act, damage fact, causality and subjective fault.

Wu took the initiative to provide his job resume when he joined X Company. His job resume is public information for X Company and does not belong to Wu's privacy. In order to verify the information of job seekers, X Company verified Wu's work experience with relevant units, which did not violate the relevant provisions of laws and regulations. And there is no evidence in this case to prove that X Company made Wu's work information public. Wu appealed that the behavior of X Company and Kang Mou constituted a violation of their privacy rights, and the basis was insufficient, and the court did not adopt it.

Wu also did not provide evidence to prove that X Company and Kang had infringed on his right of name, right of reputation and other personality rights and subjective intentions, so Wu appealed that X Company and Kang violated his right of name, right of reputation and other personality rights, and it could not be established, and the court did not adopt it.

Source: China Judgment Documents Network, Guangdong Guangkuan Law Firm

Case number: (2021) Yue 01 Min End 22736

Background investigation is not illegal, according to the relevant laws and regulations, the employer has the right to know the basic information directly related to the labor contract, and has the obligation to verify the relevant information of the applicant during the recruitment process, including education, work history, reasons for leaving, whether there is a competition agreement, etc.

Reasonable use of backtracking can help enterprises evaluate and screen suitable talents, ensure recruitment quality, avoid common employment risks in a timely and effective manner, such as fraud risk, commercial espionage, non-competition agreement, bad record and other risks, reduce recruitment costs, time costs, opportunity costs, trial period costs, dismissal costs, re-recruitment costs, etc., and improve the overall quality of the staff team. To achieve the effect of "reducing cost and increasing efficiency".

Therefore, the induction back transfer is not only a necessary obligation, but also an effective means to screen talents and reduce recruitment risks.

The back tone is not terrible, terrible is the non-compliant back tone. In the back tone, should follow the relevant laws and regulations, know how to control the boundaries of the back tone. At the same time, enterprises should choose a professional third-party backtracking company to conduct background investigations to ensure the accuracy and objectivity of the investigation results.

Why should HR entrust a third-party company to carry out a callback for a candidate selected by HR itself?

Depth and breadth, more controllable!

I believe that many people will have a misunderstanding that the back adjustment is only to verify whether the candidate's education is true and whether the work experience is real, and these back adjustments can be done by HR themselves.

In fact, the depth and breadth of back adjustment should be based on the nature of the position, the higher the rank, the more core or sensitive the position, the more need for depth of back adjustment, rather than just verifying education, work experience so simple.

According to the nature and level of different posts, the content of the back tone can be distinguished as follows:

• Entry-level staff transfer: basic information verification, education information verification, existing business interests verification, credit information verification;

• Transfer of middle managers: basic information verification, education information verification, existing business interests verification, credit information verification, reasons for resignation verification, work history verification, unit evaluation interview;

• Due diligence of senior executives: behavioral risk early warning, in-depth ability exploration, unit evaluation interview, work ability verification, reason for departure verification, work history verification, credit information verification, existing business interests verification, education information verification, basic information verification;

• Compliance backtracking of in-service employees: verification of existing business interests, performance of work ability, early warning of behavioral risks, verification of bad records, verification of credit information;

HR back channel is limited, so can verify the content will be less. Professional third-party backtracking companies can verify candidates' information through more legitimate and compliant data channels through online + offline manual verification services.

At the same time, the senior team with professional knowledge also has more mature professional skills in interview and conversation, and knows how to dig deeply into the candidate's work ability, understand its position fit in multiple dimensions, and the depth and breadth of the back report are more controllable.

Accuracy and objectivity, more guaranteed!

Most of the time, hr can only verify the back reference of a candidate's work resume by interviewing the references provided by the candidate. The biggest drawback of this is that the information obtained will be one-sided, and the references may be fake, and the result of the verification is "false information" that the candidate and the references have colluded.

The third-party backtracking company can not only choose to interview the references provided by the candidate, but also independently search for multiple effective references for cross-verification, reducing information errors and biases, and more accurately evaluating the authenticity and integrity of the information.

As an independent third party, it is not affected by the internal interests of the company or the subjective wishes of the candidate, and can maintain a neutral attitude to verify the information of the evaluation of the candidate to ensure the objectivity of the back report.

Information security and privacy protection, more standardized!

Although backtracking is not illegal, it does not mean that enterprises can investigate the information of candidates at will, which is also a thunder point that many enterprises are easy to ignore.

In the process of back interview, it is necessary to respect the candidate's privacy and protect the security of personal information.

The backtracking system of the third-party backtracking company usually has a rigorous candidate authorization mechanism, and the data source is directly connected to the official or official authorization agency, which can easily obtain the clear authorization of the candidate online before backtracking the personal information of the candidate, ensuring the legal compliance of the backtracking process.

In addition, when the third-party backtracking company handles the candidate's information and backtracking results, it can strictly abide by the confidentiality principle, do not backup the information, eliminate secondary transactions, prevent the information from being abused, leaked or improperly used, and protect the personal information security of the candidate.

The whole process compliance, enterprises can rest assured back.