Is the enterprise "being lenient", or is the employee "not cooperating"? A female employee who insisted on holding an umbrella at work was removed because she was worried that the camera in the office would let herself out. Both the first trial and the second trial lost the lawsuit, triggering thinking
Where is the boundary between corporate management and employee privacy
Our reporter Lu Yue
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Installing cameras in offices is a measure of labor management for many employers.
Some employees questioned that "being monitored" violated personal privacy, while the company said it was a management need.
The lawyer pointed out that workers have the right to privacy, but if the employer exercises the right to manage the use of labor in accordance with reasonable and usual standards or the provisions of the law, the right to privacy of the worker needs to be appropriately transferred.
At the same time, employers should perform more prudential obligations when exercising management rights, and protect the privacy rights of workers to the greatest extent.
The female employee was worried about being out of work, and she was dismissed from the labor contract by holding an umbrella at the work station to block the camera, and demanded the company to pay more than 330,000 yuan.
The lawsuit went from the first arbitration and second trial to the retrial, and the Provincial High Court rejected its application for retrial.
Recently, this case has aroused heated discussion.
Is the enterprise "being lenient", or is the employee "not cooperating"?
Where is the boundary between enterprise employment management rights and employee privacy rights?
Dismissed after holding an umbrella for more than ten days
On June 24, 2019, a company in Shenzhen where Zhang worked installed multiple high-definition cameras in the work area, one of which was located above his workstation.
Zhang Moumou believes that the camera can capture her personal privacy, and the company's executive is a male, and her location is easy to get out of sight, so she held two umbrellas at the work station to block her.
After the company communicated with Zhang XX about the umbrella act twice through the personnel manager, the "warning letter" was sent to him in writing twice.
Under this circumstance, Zhang XX still insisted on holding an umbrella at the workstation for more than ten working days.
On July 17, 2019, the company terminated the labor contract with Zhang on the grounds of serious violation of discipline when he opened an umbrella at the work station.
Zhang Moumou believes that the company's behavior to terminate the labor contract is illegal, and it is necessary to pay a total of more than 330,000 yuan in compensation for the illegal termination of the labor contract.
The case went through arbitration, first instance, second instance, and retrial.
The retrial civil ruling made by the Guangdong Provincial Higher People's Court found that from the previous notice issued by the company, it can be seen that the company installed surveillance cameras to ensure the safety of people, property, and materials in the workplace, and the installation area is multi-person The public place of work, the private living area of non-workers, and the installation location is usually above the corner.
The installation of surveillance cameras by the company belongs to the supervisory authority of normal users, and its behavior is reasonable and there is nothing wrong with it.
The court pointed out that Zhang Moumou advocated that the camera is located on top of his head, making it easy to capture his privacy.
However, a specific analysis based on the photos and other evidences provided by him cannot support his above claims.
As for Zhang's claim that the executives are men and their positions are easy to disappear, because he did not provide direct evidence to prove this, the first and second instance courts did not accept this as correct.
The High Court ruled to reject the retrial application.
"Being monitored" does not mean "being infringed"
"The boundary between the public area and the private area is obvious." Jing Yu is the personnel director of an education and training organization in Beijing. He has been engaged in human resource management for more than 10 years.
In her view, for the needs of supervision and management, the employers install cameras in office areas, such as offices, conference rooms, or gates, passages, rather than private spaces such as bathrooms and dressing rooms, and they are not targeted at any individual employee. The behavior is legal.
In order to prevent the loss of goods and prevent employees from smoking in the warehouse, a chain shoe and clothing company where Jing Yu once worked installed surveillance video in the warehouse.
Some employees once mentioned that they were worried about being caught by cameras when changing clothes in the warehouse.
"It cannot be denied that changing clothes is a personal and private act, but I explained to the staff that the mall has a dedicated staff locker room, and the camera will not shoot at the locker room, and the warehouse is the working area. The camera is installed for management needs." Jing Yu said .
Reporters inquired about China Judgment Documents.com and found that in judicial judgments, the courts usually consider whether there is any leakage or other infringements after the employer obtains employees’ private information when dealing with the boundary between corporate management rights and employee privacy rights.
In August 2020, Wuhan Intermediate People's Court heard a labor dispute case.
On April 9, 2019, a trading company in Wuhan arranged for employee Xiong to travel to Changsha. Both work and accommodation were in the company's Changsha office.
The office is located in a residential area, with one room, one hall and a kitchen and bathroom warehouse.
Among them, a camera is installed in the living room (opposite the door), and the camera operates 24 hours a day.
In response, Xiong expressed that he could not accept it, and on April 11, 2019, he filed for resignation and filed a labor arbitration requesting the company to pay economic compensation, and he finally filed a lawsuit in court.
The court of first instance held that the work area and rest area of the Changsha office were mixed.
The company installs cameras in the living room to supervise the work area.
On the other hand, the office is full of goods, there are many people coming and going, and the cameras installed are facing the door, which can prevent the goods from being damaged. It is necessary. Therefore, it should not be considered that the company's installation of cameras infringes Xiong's privacy.
The court did not support Xiong's claim for economic compensation.
In the second instance, the Wuhan Intermediate People’s Court held that Xiong was aware of the company’s installation of cameras, and did not provide evidence that the company would freely disclose or divulge the video data obtained from its monitoring to others; the company had set up the office in this office out of management needs. The installation of cameras in the living room does not necessarily constitute an infringement of employees’ privacy.
How to balance the right of enterprise management and the right of employee privacy
"Workers have the right to privacy, but if the employer exercises the right to work management in accordance with reasonable and usual standards or the provisions of the law, the right to privacy of the worker needs to be appropriately transferred. This is that the labor relationship itself contains the content of management and being managed. Decided.” said Shi Fumao, deputy director of the Labor and Social Security Committee of the Beijing Lawyers Association and director of Beijing Fumao Law Firm.
“Some situations even involve the employer’s right to know and the employee’s obligations.” Shi Fumao pointed out, “For example, the employer’s right to know the address and ID number of the employee due to the need to sign a labor contract. Another example is the condition of the employee. It may be privacy for others, but when the human resources department of the employer approves sick leave, the worker cannot refuse to provide it on the grounds of privacy, otherwise the employer will have no basis for approving sick leave."
“Of course, the production and management activities and employment management activities of enterprises must abide by laws and administrative regulations. At the same time, the contents of rules and regulations established by legal procedures must be reasonable and conform to the evaluation standards of ordinary people.” Shi Fumao emphasized, “This is the boundary. "
According to Du Wei, a national outstanding lawyer for safeguarding the rights and interests of employees and a lawyer from Sichuan Weixu Law Firm, there are several principles that can be used to judge the boundaries between enterprise employment management rights and employee privacy rights: whether it is legal, necessary, and justified in management , Whether to fully inform in advance, and strictly keep confidential the employee’s private information.
“Employers should exercise more prudential duty of care when exercising their management rights.” Du Wei said that through written consultations with workers in advance or formulating rules and regulations, as much as possible, the privacy of workers may be violated. Enumerate the behaviors of the right to clarify the purpose, method, and scope of authorized use of personal information and private information.
In addition, the formulation of rules and regulations must not excessively expand the company's management power, and should protect the privacy of employees to the greatest extent.
In recent years, Jing Yu has clearly discovered that employees’ awareness of rights is increasing. “Whenever you have any questions, you will immediately consult with a lawyer.”
In Jing Yu's view, this is also a reminder to the company, urging the company to improve its rules and regulations and standardize labor management. This is not only the protection of employees' rights and interests, but also the protection of the company itself.