Background screening in South Korea: A know-it-all guide

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Background Screening in South Korea

International background screening is easier said than done. South Korea is one of those countries where initiating background screening checks can become a knotty task. Out of several reasons, the majorly contributing factor for its complexity can be attributed to the country’s prohibition for performing criminal checks using police records. This renders organizations incapable of completing criminal verification. Furthermore, the data protection laws require additional consent from people who have applied to release such personal information. Organizations that fail to abide by these rules and regulations will be made to face significant consequences.

To help employers who are performing background checks in South Korea, here’s an article that dwells deeply on the nuances of background screening in this country. Let’s get started.

With hiring the right talent becoming a crucial cornerstone for organizations’ success, background checks providers have introduced several products that require collection of personal and private information (for instance, any typical information that can be used to identify a particular individual). An organization must obtain prior consent from the applicant (the Personal Information Protection Act (PIPA), article 15(1)) to use the said information to perform background screening. Furthermore, separate consent has to be obtained whenever sensitive information (for instance, information related to any ideologies or beliefs, association with any trade union or party, health, and sexual life, personal DNA records) is being collected (PIPA, article 23(1)).

Each of the permitted background checks relates to checks on personal information or sensitive information under the PIPA, except for credit/financial checks which are subject to the Use and Protection of Credit Information Act. According to PIPA:

– Personal information is broadly referred to as information pertaining to a living individual which helps identify a specific person to a name or address or other similar specific details (including such information if combined with some other information, will also make it a possibility to identify an individual).

– Sensitive information is defined as any personal grade information which may concern ideology or faith, union membership, political views, health conditions or treatment taken, or sexual orientation, criminal records or genetic information (e.g. sentencing, probation, exemptions, suspended sentences, or protective custody).

– Similarly, unique identification information is defined as an individual’s resident registration number, passport number, driver’s license number, or ‘alien’ registration number.

Criminal Checks

Once an employer has obtained the applicant’s consent, they may be authorized to access criminal or investigation records of a person; however, this would apply only if the applicant is looking to be employed by industries such as  childcare, education and healthcare (according to the Act on the Lapse of Criminal Sentences, article 6(1) and 6(3)). In other cases, conducting a criminal check is not permitted.

Credit Checks

To collect personal credit information, the Use and Protection of Credit Information Act requires the employer to obtain consent from the applicant and also notify the applicant that their credit rating may be impacted at the time of any such inquiry. Therefore, if the applicant refuses to consent, a credit check cannot be performed.

Medical and Drug Tests

There is no specific law that restricts or prohibits the necessity of a medical test as a condition for employment. Information related to an applicant’s health can constitute as sensitive information according to the PIPA; employers need to obtain prior consent before collecting it. Before obtaining consent, an employer needs to inform:

– the purpose for sample collection

– the usage of the information derived

– the details of information required

– the timeframe that the information is going to be retained

– the right of any applicant to refuse the data collection and

– the consequences that the applicant may face if they refuse

An applicant’s non-compliance to submit a medical examination report will not justify the employer’s refusal to employ the applicant. The National Human Rights Commission (NHRC) of Korea Act (the NHRC Act) has empowered the NHRC to provide immediate relief where any applicant has faced discrimination in the recruitment process solely on the grounds of medical history.

Employers may only request the least information required, such as educational and employment history records. Employers cannot ask for details that relate directly to protected personal characteristics (e.g. age of the person, nationality, personal sexual orientation, and religion). Regarding female applicants, the employer should be extremely cautious about requesting information that is absolutely not critical for the job (e.g., a person’s appearance, marital status, and height).

Outsourcing Background Checks to a Third Party:

If an employer wants to hire a third party to conduct any background check, the party must obtain consent from the applicant (the Credit Information Use and Protection Act, Article 32(1)). Employers should take up any costs related to the procedure (the Fair Hiring Procedure Act, article 9).

PIPA requires a delegation agreement in writing which will contain the details of the arrangement along with the following clauses:

– purpose & scope of delegation

– limitations on the scope of such delegation (e.g., prohibition of processing of personal information for any purpose other than the delegated purpose, and limitations on sub-delegation)

– technical and managerial protective measures

– matters regarding the supervision or management of personal information that is possessed in connection to delegating

– provisions on compensation for any damages in the unlikely event of any breach by the delegated company.

Now, let’s look at the existing laws and regulations that focus on regulating background screening in South Korea.

– Personal Information Protection Act (2011)

– Labour Standards Act (1997)

– Use and Protection of Credit Information Act (1995)

– Act on the Lapse of Criminal Sentences (1980)

– Equal Employment Opportunity and Work-Family Balance Assistance (1987)

– Immigration Act (1963)

– Trade Union and Labour Relations Adjustment Act (1997)

If an employer is found to carry out background checks unlawfully, then

– As per the Personal Information Protection Act, if any personal information has been collected & used without consent, the employers may be subjected to an administrative fine of up to 50 million KRW or imprisonment of up to 5 years. Unlawful screening norms could include the collection & use of any sensitive information and/or any unique identification info without prior consent. The employer may also be liable and subject to fines of the same amount, and/or maybe subjected to any corrective orders by the Ministry of Public Administration and Safety, the ministry that administers PIPA.

– As per the Trade Union & Labor Relations Adjustment Act, if any background check in regard to union membership is found to be an unjust labor practice, an employer may be subjected to imprisonment for up to 2 years or any fine of up to 20 million KRW.

– As per the Use & Protection of Credit Information Act, if any credit/financial information is collected or used without prior consent, an employer may be subjected to criminal sanction of imprisonment for up to 5 years or a fine of up to 50 million KRW.

– As per the Act on the Lapse of Criminal Sentences, if any criminal record is acquired or used contrary to the Act, the employers will be subjected to criminal sentences of imprisonment for up to 2 years or a criminal fine of up to 20 million KRW.

To know more about the ins and outs of background screening in South Korea, drop a line via irene.jones@neeyamo.com Our screening solution evangelists will get in touch with you.

References:

https://www.lexology.com/library/

A Global Guide to Background Checks by Mayer Brown

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