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PRC Labour Law - Bitesize

30 January 2013
Mayer Brown JSM Newsletter


What am I not permitted to ask a job applicant?

When interviewing a job applicant, you should be careful not to engage in unlawful discrimination and to avoid asking questions that relate to a protected attribute of the applicant (see next question).

What are the protected attributes in the PRC?

In China it is unlawful to discriminate against a job applicant on the basis of nationality, race, gender, religious belief, disability, residence status (i.e., rural worker or urban worker) or physical status (e.g., whether he/she is a carrier of epidemic pathogens such as Hepatitis B).

A disabled person is someone who suffers from abnormalities or loss of a certain organ or function, psychologically or physiologically, or who has lost in whole or in part the ability to perform an activity in the way considered normal. Such disabilities include visual, hearing, speech, or physical disabilities; mental retardation; mental disorders, multiple disabilities.

What prohibitions apply to employers during the recruitment process?

Employers should be aware of the following prohibitions:

Employers are prohibited from:

  • providing false recruitment information or issuing false recruitment advertising during the recruitment process;
  • wrongfully holding on to an individual's identity card and/or other certificates during the recruitment process;
  • collecting property or personal belongings from an individual as a form of guarantee or under some other guise, and/or seeking unlawful profits or conducting other illegal activities in the name of recruiting;
  • recruiting a minor (any person under the age of 16) or any other person who may not lawfully be employed under any State law or administrative regulation. Employers are prohibited from recruiting an individual who does not have the requisite legal identity documents;
  • defaming an individual's current or former employer through the use of commercial bribery or any other unjustifiable means, in order to recruit the individual.

What are some specific prohibitions relating to female candidates?

When recruiting, an employer must not refuse to recruit women (except in cases where the job position in question is classified as unsuitable for women) or increase the thresholds for the recruitment of women under the excuse of gender. When recruiting a female employee, an employer must not stipulate in the employment contract any condition which restricts the female employee from getting married or bearing a child.

What are some specific prohibitions relating to pre-employment physical checks?

An employer is not permitted to require a job candidate to submit to a pre-employment medical examination that is not relevant to the duties that he or she will be required to perform in the job position. An employer may not use a candidate's health problems to discriminate against that candidate. However, there are certain exceptions to this.

For example, there are certain positions for which the law requires that a person must be free from a particular disease in order to be permitted to perform that role. Furthermore, carriers of infectious disease pathogens, and those suspected of carrying an infectious disease (as verified by a doctor) are barred from applying for and performing certain jobs (subject to applicable law) until they have been cured or cleared of suspicion.

An employer is not permitted to force a candidate to use the Hepatitis B virus standard blood serum as part of the physical examination unless the law or regulations prohibit a person with Hepatitis B from holding the position applied for.

Employers are required to keep the details of the medical examination checks of their candidates strictly confidential.

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