Some people were punished for short videos, shopping, etc. during work hours; after some people sent their resumes to other places, they were quickly laid off...
Does the company have the right to "peep" on employees' online content?
Our reporter Dou Feitao Yang Zhaokui
"Workers Daily" (February 25, 2022 04 edition)
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In recent years, companies have repeatedly used technology to monitor employees, and the methods are also varied.
In this context, some employees were punished for short videos, shopping, etc. during working hours; some employees were quickly laid off after submitting their resumes elsewhere... In this regard, experts pointed out that companies improperly used surveillance technology or constituted Infringement, and this will make employees feel insecure, may reduce the enthusiasm and initiative of employees, and is not conducive to improving work efficiency.
Therefore, the use of technical means for enterprises to exercise management rights must have boundaries.
Recently, along with rumors of low-key layoffs in the question-and-answer online community Zhihu, a system that claims to be able to monitor employees' turnover intentions has come into the public eye.
However, Zhihu responded that Zhihu has never installed and used the behavior perception system mentioned on the Internet, and will not enable similar software tools in the future.
It is understood that the monitoring system page is consistent with the product introduction page of a software "Sangfor Behavior Perception System BA" developed by Sangfor in 2017, which made Sangfor fall into the cusp of public opinion.
A salesperson at Sangfor told the media that the company’s service can help companies “judge employees who have a tendency to leave” and can record “employees’ online behaviors.”
But the salesperson emphasized that "this is very legal, and many companies are using it."
Some netizens said that their company has also installed a similar system, and company managers can check employees' Internet records through the background to see if employees go to work "fishing", transmit confidential documents, etc.
Some netizens said that they were laid off by the company shortly after submitting their resumes, suspecting that the information was monitored by a system called "Resignation Tendency Analysis".
So, does the use of technical means to "peep" employees browsing related websites and APPs in the unit violate employees' privacy rights?
How to balance the privacy rights of employees and the management rights of enterprises?
In this regard, the "Workers Daily" reporter recently interviewed relevant experts, judges, lawyers and so on.
The development of surveillance technology itself is not illegal
The reporter noticed that recently, a screenshot of the "details of employees with turnover tendency" widely circulated on the Internet shows that an employee of a customer orientation department of a company visited the job search website 23 times, submitted resumes 9 times, and listed the application for each resume. Recruitment website and delivery time.
Industry insiders pointed out that many companies have developed employee online behavior perception systems. This system can monitor employees' violations of company management regulations, use of non-work-related applications during work hours, access to job search websites, and use of illegal applications, and provide evaluation reports. In this way, the company can know whether employees are "fishing" or have a tendency to leave during their working hours.
In November last year, the "Notice on Punishment for Violation of Employee Code of Conduct" issued by a well-known enterprise was circulated online.
According to the notification, employees can be monitored while they are at work, watching short videos, listening to music, shopping, and ordering takeaways.
This has sparked discussions about surveillance systems and whether companies violate employee privacy.
So, is it illegal for companies to develop related monitoring systems?
In this regard, Li Huizhuo, a judge in the Civil Trial Division of the People's Court of Daxing District, Beijing, told the "Worker Daily" reporter that technology itself is neutral, and the development of monitoring technology itself is not illegal, and sometimes monitoring technology can also promote social Harmony and stability, such as assisting in escaping online or implementing location protection for underage children by parents.
Improper Use of Surveillance Technology by Businesses or Constitutes Infringement
Li Huizhuo believes that the development of monitoring technology itself is not illegal, but the improper use of monitoring technology by enterprises may cause infringement and constitute illegality.
"Similar phenomena such as monitoring employees' turnover intention through technical means are the products of technological development. From a legal point of view, this issue involves the conflict between enterprise management rights and employees' personal privacy." Cheng Yang, a lawyer at Beijing Lantai Law Firm He told reporters that, according to Article 13 of the "Personal Information Protection Law", if an enterprise wants to collect employees' personal information on the Internet, it should obtain the consent of the individual, or prove that the collection of the information is for the conclusion and performance of a contract to which the individual is a party. necessary, or necessary for the implementation of human resources management in accordance with legally formulated labor rules and regulations and legally signed collective contracts.
"In other words, the key to whether employees' rights are violated is whether the company can inform employees and obtain their consent, or whether the company can prove that the collection of information is necessary for human resource management. However, it is generally considered that understanding employees' turnover intention is difficult to identify as a It is necessary for human resource management." Cheng Yang said.
Li Huizhuo said: "Workers have the freedom to resign, and the intention to leave is the intention of the employee to choose a career, not something that the employee must inform the employer during the performance of the labor contract, and the employer has no right to use this as an excuse to inform the employer. Workers are monitored.”
In addition to monitoring employees’ turnover intentions, many companies also monitor employees’ online records during work hours, and analyze the length of time different employees access slow-work apps.
In this regard, Cheng Yang believes that if the company regulates employees' use of working hours to engage in non-work behaviors, it also needs to consider the legitimacy and rationality of the system, and cannot act arbitrarily.
How to balance corporate management rights and employee privacy rights?
In recent years, companies have repeatedly used technology to monitor employees, and the methods are also varied.
However, Shen Jianfeng, a professor at the Law School of the Central University of Finance and Economics and dean of the Law School of the China Institute of Labor Relations, believes that even in the workplace, workers have the right to privacy and proper rest. Command and manage the right, ignoring the personal dignity of employees.
Therefore, the company monitors whether employees have the tendency to leave, and whether it is suspected of crossing the boundary of "fishing", and it makes employees feel insecure, which may reduce the enthusiasm and initiative of employees, and is not conducive to improving work efficiency.
Therefore, the use of technical means for enterprises to exercise management rights must have boundaries.
"The boundary lies in whether it is necessary to implement human resource management, and whether sufficient notification and consent procedures are performed. Moreover, even if the employee agrees, due to the weak position of the employee in the labor relationship, it is obviously unreasonable to monitor the employee's private mailbox and other behaviors. should be restricted," Cheng Yang said.
Li Huizhuo also believes that the monitoring behavior of enterprises should comply with the law. If it is necessary to notify the workers in advance or obtain the personal consent of the workers according to the law, they cannot monitor and monitor the employees through illegal means; Employers cannot monitor workers outside of working hours within the scope necessary for “contract” or “implementation of human resources management”.
Even the monitoring information obtained during working hours cannot be improperly used "unrelated to work" personal information, such as the disclosure of employee personal privacy information beyond the necessary limits.
"In fact, respecting the legitimate rights and interests of laborers, implementing humanized management of laborers, and using management methods to positively stimulate employees' subjective initiative may be more conducive to establishing harmonious labor relations and promoting the long-term development of enterprises than monitoring and other methods." Li Huizhuo said.
Li Huizhuo also suggested that relevant government departments such as human resources and social security departments can issue policies and departmental normative documents to guide enterprises to legally protect employees' personal information and personal privacy in the process of employment management, and make it clear that the illegal implementation of employment management rights infringes upon the legitimate rights and interests of workers legal consequences.
In addition, if an employer takes advantage of its dominant position to formulate relevant rules and regulations that infringe on the employee's personal information or personal privacy, or proposes to terminate the labor relationship with the employee based on illegally obtained evidence, the trade union organization should actively play its supervisory role.