How Should the Offer be Integrated with Background Checks to Reduce Legal Risks in Recruitment for Companies?

An Offer has the same legal binding force as a formal labor contract. If an employer violates the terms of the Offer and fails to enter into a labor contract with the applicant, they must bear "liability for fault in contract formation." "Liability for fault in contract formation" refers to the obligation arising from the breach of the principle of good faith during the contract formation process, which leads to the loss of the other party's trust interests and should bear the liability for damages. After the Offer is issued, both the employer and the employee are still in the process of forming a labor contract. At this point, if the applicant has made the necessary preparations and investments to sign the labor contract based on full trust in the employer, and ultimately the labor contract is not formally signed due to the employer's fault, the employer should bear the compensation liability.

Conversely, according to Article 8 of the Labor Contract Law, the employer has the right to understand the basic situation of the worker that is directly related to the labor contract, and the worker should truthfully explain it. Furthermore, Article 26, Paragraph 1, Item 1 of the Labor Contract Law stipulates that a labor contract is invalid or partially invalid if it is concluded or changed by fraud, coercion, or taking advantage of someone's difficulties, causing the other party to sign or change the labor contract against their true will. The applicant must fulfill the obligation to inform during the interview process. If there is any fraud, the enterprise has the right to terminate the contract without compensation. Since the Offer has the same binding force as labor activities, the Offer is also invalid if there is fraud involved.

What is the content and timing of the Offer?

In companies, the sequence of Offer distribution varies according to each company's pre-employment review process. The Offer is usually issued by the HR department after the candidate has passed the final interview and received approval from the company's leadership. The earlier the Offer is issued, the greater the likelihood of the candidate joining the company, and it can also better express the company's sincerity. However, it is not always better to issue the Offer as early as possible.

A more prudent approach is to start the background check immediately after the interview results are known and to issue the Offer after the candidate has passed the background check. Since background checks typically take 1-5 working days to complete, there will inevitably be a delay in the timing of the Offer. Other companies may issue Offers directly without conducting background checks, which could lead to candidates choosing other companies and causing talent loss.

We recommend that companies add conditions such as 'This Offer is only valid after the candidate has passed the background check' in the content of the Offer, and issue the Offer immediately after the candidate has passed the final interview.