Not long ago, when an aunt in Yangzhou rode an electric car home, a man claimed to be a traffic police officer and asked her to pay a fine of 50 yuan on WeChat on the grounds that she was not wearing a helmet. The family called the police when they found out. After investigation, it was found that the man had previously applied for a job with a security company, but was rejected because of his criminal record. Before returning the company's uniform, he had evil thoughts and pretended to be a traffic police officer to "enforce the law" on the street, illegally collecting the so-called "fine". At present, he has been detained by the police in accordance with the law.
After this incident was exposed by the media, it aroused heated discussions among netizens. In reality, if a company finds that an employee has a "criminal record", can it fire him? Let's take a look.
This "criminal record" is not the other "criminal record"
On July 14, 2016, Mr. Song joined Company M as a food loader. The "Personnel Information Form" he filled out stated: "Have you ever been punished by the relevant departments for violating the Criminal Law or the Public Security Administration Punishment Regulations?" and if so, please explain", while Mr. Song filled in "No".
Later, when Company M conducted a political background check on the employee, it was found that Mr. Song had been administratively detained by the public security authorities before joining the company. On September 14, 2020, Company M had a conversation with Mr. Song. During the conversation, Mr. Song admitted that he had been administratively detained by the public security authorities for 3 days in 2015 for violating fire regulations due to the expiration of his welding license, but insisted that the certificate of no criminal record submitted by him when he joined the company was true and valid, and that he had never concealed or deceived the company, and was unwilling to resign voluntarily.
On September 22, Company M terminated Mr. Song's employment relationship. After the labor arbitration, Mr. Song filed a lawsuit with the court, demanding that Company M pay compensation for the illegal termination of the labor contract.
Mr. Song believes that he was subject to administrative punishment for violating fire regulations due to the expiration of his welding certificate before joining the company, which is not an administrative penalty under the Public Security Administration Punishment Law. I also did not provide false personal information, and the position of kitchen servant was not necessarily related to the administrative punishment he had received, and the administrative punishment would not affect the work I was engaged in.
Company M argued that Mr. Song's conduct was a serious violation of the company's rules and regulations. Company M is an aviation security unit and has very strict requirements for employees' political backgrounds, so there is a threshold requirement for employees to join the company, and they must not have been subject to administrative penalties before.
After trial, the court held that Company M's termination of the employment contract on the grounds that Mr. Song's concealment of the fact that he had been administratively detained at the time of joining the company constituted a serious violation of discipline, which constituted illegal termination, and ordered Company M to pay compensation for the illegal termination. (Case No.: (2021) Hu 0112 Min Chu No. 17531)
Failure to take the initiative to inform ≠ deliberately conceal it
Article 8 of the Labor Contract Law clearly stipulates that "the employer has the right to know the basic information of the employee directly related to the labor contract, and the employee shall truthfully explain it." "The circumstances closely related to the performance of the employment contract on the part of the employee usually include the employee's work experience, education and physical health, etc., and the employer has the right to know about this. In particular, according to Article 100 of the Criminal Law, a person who has received a criminal punishment in accordance with the law shall truthfully report to the relevant unit that he has received a criminal punishment when he enlists in the army or is employed, and must not conceal it. Persons who were under the age of 18 at the time of the crime and were sentenced to up to five years imprisonment are exempt from the reporting obligations provided for in the preceding paragraph.
At the same time, according to Articles 26 and 39 of the Labor Contract Law, if the employee has concealed a "criminal record" directly related to the performance of the labor contract, and the employer has made an expression of intent to conclude the labor contract based on trust, and the employee has committed fraud, the labor contract shall be invalid or partially invalid, and the employer may terminate the labor contract.
However, if the employee does not take the initiative to inform the "criminal record", it does not mean that the employer has the right to unilateral termination. The employee's obligation to truthfully inform means that he does not deliberately conceal relevant information, and does not have to voluntarily disclose his or her "criminal record" record to the employer. Except for the positions that are not allowed to be engaged in after criminal punishment as clearly stipulated by law, only when the employer makes an inquiry or explicit request that the employee have the obligation to truthfully inform, which is also to maintain the balance between the equal employment rights of citizens and the employer's right to know.
For example, in this case, the employee handbook of Company M stipulated that the provision of false personal information by the employee in the Employee Information Form was a serious violation of the company's rules and regulations, and the employment contract would be terminated immediately once verified. However, Company M had no evidence to show that it had made "no administrative punishment" a condition of employment, or had asked Mr. Song whether he had "no administrative punishment", but only whether he had been punished by the relevant authorities for violating the Criminal Law or the Public Security Administration Punishment Regulations, and Mr. Song's answer could not be regarded as a failure to truthfully inform him, so the court finally found that Company M was terminated illegally.
In judicial practice, if an employer terminates an employee on the grounds that the employee has fraudulently terminated the employee, it shall bear the burden of proof for its claim. If a company adduces evidence that Ye was sentenced to 10 months and 9 months in prison twice for theft, but he filled in the "work experience" column of the employment registration form and marked "/" in the column of "when, where, and what kind of reward or punishment" was marked in the column of "when, where, and what kind of reward or punishment", the court's judgment was not improper for the company to terminate the labor contract. (Case No.: (2022) Hu 0104 Min Chu No. 60)
However, in another case, the court found that Bai's employment materials had been lost and could not be provided, and that the files of other employees and the explanations issued were not sufficient to prove that Bai had concealed his past experience when he joined the company, so the court found that it was illegal to terminate the company. (Case No.: (2023) Hu 01 Min Zhong No. 14834)
The employment contract that violates the prohibition of employment is invalid
Of course, for positions that are prohibited by law, the employer may terminate the employment contract in accordance with the law. For example, the post of security has special significance for the protection of public property and the safety of people's lives and property, so the state has formulated special access qualifications for the post of security.
According to Article 17 of the Regulations of the State Council on the Administration of Security Services, "a person shall not serve as a security guard under any of the following circumstances: (1) he or she has been taken into custody and education, compulsory isolation for drug rehabilitation, re-education through labor, or administrative detention for more than three times; (2) he has been criminally punished for intentional crimes; (3) he has had his security guard certificate revoked for less than three years; (4) he has had his security guard certificate revoked twice." Accordingly, if the fake traffic police officer at the beginning of this article has had his security guard certificate revoked for less than 3 years, the security company can terminate the labor contract.
In addition to security guards, in order to protect the public interest, mainland law currently has a prohibition clause on the practice of auctioneers, teachers, directors, supervisors, senior executives, bus drivers, etc. Article 37 of the Criminal Law also imposes a system of professional prohibition on the use of professional convenience to commit crimes. One of the consequences of the prohibition of professional crimes is, of course, the invalidity of labor contracts in violation of the mandatory provisions of laws and administrative regulations as stipulated in Article 26 of the Labor Contract Law.
When terminating an employment contract on the grounds that an employee has a "criminal record", the employer should also pay attention to the following issues:
First, according to Article 31 of the Regulations of Shanghai Municipality on Employment Promotion, unless otherwise provided by laws and administrative regulations, employers and human resources service agencies shall not inquire about the illegal and criminal records of employees or other information when recruiting personnel or providing human resources services, or require employees to provide information unrelated to the performance of labor contracts.
Second, for some occupations that are required by law or related to the safety of the people's lives, employees who have no relevant "criminal record" can be included in the employment conditions in accordance with the law, and employees are required to provide a certificate of no criminal record when they enter the company. However, except for the effective judgment of the people's court confirming guilt, all other circumstances shall be deemed innocent, so persons who have been subject to administrative detention may also have a certificate of no criminal record.
Third, if the employer unilaterally terminates the employee due to the employee's "criminal record", it shall serve a notice of termination on the employee in a timely manner. If the labor contract is confirmed to be invalid, the employee shall still pay the relevant labor remuneration if the employee has already paid the labor.