With the development of technology, more and more Employers use electronic monitoring facilities as a means of workplace management. The use of electronic monitoring as a means of management enhances the supervision and protection of the workplaces meanwhile such monitoring measures, to a certain extent, also intervene with the privacy of employees.
How to balance the employer management and the employee privacy?
Let's take a look at a recent case - Guangdong Provincial Higher People's Court (2020) Yue min Shen No. 8843 (November 4, 2020).
On June 24, 2019, the company where Ms. Zhang was working for installed multiple cameras in the workplaces. Ms. Zhang thought that one of the cameras was just above her work cubicle which could capture her privacy, so she put two umbrellas on the cubicle to block the camera. On June 26, the HR department of the company gave two verbal warnings to Ms. Zhang's behavior, asking her to take the umbrellas back. On July 3 and 4, the HR manager of the company issued another two written warnings to Ms. Zhang, asking her again to take back the umbrellas.
However, Ms. Zhang thought that her behavior did not violate any regulations, and she refused to take back the umbrellas as requested by the company. On July 17, the company issued a written notice of termination of the labor contract to Ms. Zhang, and informed the labor union that the reason for termination was that Ms. Zhang's behavior seriously violated labor discipline and rules of the company. Ms. Zhang believes that the company's termination is illegal, and filed for labor arbitration and litigation claiming economic compensation for the termination.
The labor arbitration, courts of first instance, second instance and retrial all held that Ms. Zhang's behavior lasted for more than ten working days despite of repeated warnings and requests by the company, which had severely and negatively affected the normal working order and management of the company. It constitutes a serious violation of discipline.
The cameras are intended to monitor the whole work area, which is in line with the reasonable measures of employer to exercise its right of supervision.
In conclusion, it is not improper for the company to terminate the labor contract accordingly, and there is no need to pay any compensation.
The preceding judgment can basically represent the current opinion of Chinese judicial practice, that, in general and brief, camera monitoring is a reasonable measure of employers.
We would like to point out that, as confirmed by Article 1032 of the PRC Civil Code, Natural persons have the right of privacy. No organization or individual shall infringe upon others' right of privacy by spying, intruding, divulging or publicizing others' private matters. Private matters refer to the private peaceful life of a natural person and the private space, private activities and private information that a natural person does not wish to be known by others.
The right of privacy is a legal right enjoyed by every individual, thus the right of privacy of an employee – as an individual - should also be protected. When exercising the right of management, employers should not violate the law and impose excessive restrictions on employees' right of privacy, while employees cannot arbitrarily expand their privacy rights as well.
Employees should abide by the legitimate and reasonable management of the employers and actively obey the necessary supervision of the employers in the workplaces during working hours.
Regarding the balance of camera monitoring between the protection of employees' privacy rights and the exercise of employers' management rights, we would like to give some compliance suggestions to employers as follows:
1. Due Purpose and Reasonable Scope
When employers implement electronic monitoring in the workplaces, it should be carried out for the legitimate interests of the employers such as protecting the safety of the properties and working environment. Employers should also pay attention to the legality of the monitoring equipment, to avoid using the equipment that has not been approved by the authorities or prohibited by laws and regulations.
The implementation scope of electronic monitoring should be limited to reasonable workplaces and working hours. For instance, the washrooms, as well as employees' off-duty hours, should not be within the scope of electronic monitoring implemented by employers.
2. Prior Notice and Written Regulation
On the basis of the above legitimate purpose and reasonable scope, employees, as the monitored objects, should have the right to be informed of the purposes, scale, time and space scope of the electronic monitoring, and the employers should notify the employees in advance through employee handbook, labor contracts or other written forms.
3. Confidentiality and Lawful Use
The recordings of employees obtained by the employers through electronic monitoring shall be kept confidential, and the necessary security measures must be taken to protect the privacy and personal information of the employees. Employers shall not disclose such information without express authorization of the employees unless otherwise requested by law or competent authorities.
In addition, employers should restrict the use of the recordings collected, only for the purpose originally announced by the employers to the employees. The employers should not use such recordings for commercial purposes without permission.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
