From the early days of human supervision to surveillance cameras, to the current various monitoring software and monitoring equipment, the behavior monitoring of employees has a long history. Especially under the great power of Internet information technology, this kind of monitoring makes people feel "breathless"
In the context of the mainland, where there is no distinction between the privacy rights of workers inside and outside the workplace, experts suggest that the principle of monitoring employee behavior by enterprises can be borrowed from the "three work principles" of work injury recognition, that is, appropriate monitoring can be carried out during working hours, work locations, and work-related content
Enterprises may consider writing various monitoring or intelligent management methods into the company's rules and regulations more clearly, and the employee representatives will participate in the formulation, be voted by the staff congress, and determine the means, methods, scope, extent, relief channels, etc. of supervision through consultation, and give full play to the coordination and balance role of the enterprise trade union
The modern management system should pay more attention to personalization, emphasize humanistic management, make management change from ruthless to sentient, let employees feel respect and trust, and achieve a high level of management
Wen | Yu Xue jia wenjing, a reporter for the "Outlook" news weekly
"Make the Internet visible and controllable, and make the data more valuable." For some time, the perception system of employees' online behavior that upholds this concept has aroused widespread discussion in society.
These software claims that the product can monitor employee computer screens in real time from the first view, restrict employee access to program web pages, fully monitor common chat software, browse all files on employee computers, and even back up files to manager computers.
From this point of view, some companies have reported criticisms of employees going to work to "touch the fish", the content is detailed to the software used, how much traffic, and some employees suspect that they have been dismissed because they were monitored by the company to browse the recruitment website and submit resumes... For a time, netizens exclaimed: enterprises have taken corresponding actions according to the "perceived" employees' Online behavior in the background.
Is it legal for enterprises to record the trajectory of employees' online behavior in the background? How is the boundary between public and private defined in an employment relationship? How to balance the efficiency management of the company with the privacy of employees?
Legitimate products must be used legally
Internet behavior management refers to helping Internet users control and manage their use of the Internet.
Taking a company's "behavior perception system BA (business analysis)" as an example, the system is divided into two parts: data collection and data analysis, based on massive Internet logs, in-depth modeling and analysis of user behavior characteristics, to help organizations understand behavioral risks and simplify operation and maintenance management.
Within the behavior perception system, the details of employees' online behavior are clear at a glance, including the number of times employees visit job search websites, the number of resumes submitted, and the number of chat records containing keywords.
According to public information, the behavior perception system software was filed with the public security department and obtained registration approval in 2017.
Shi Fumao, deputy director of the Labor and Social Security Committee of the Beijing Lawyers Association, believes that according to the Measures for the Administration of Software Products, domestic software products should be registered and filed by the development and production units of the software products, and relevant materials should be submitted. In other words, the products developed by enterprises that have been filed for the record comply with the law.
Although the product itself is legal, the legitimacy of such a detailed and detailed management of online behavior by enterprises for employees is still controversial.
Shi Fumao said that the use of products that have been filed by enterprises is also in line with the law, and enterprises also have the right to monitor employees' online behavior within the scope of the record. "The crux of the matter is that legitimate software products can be used illegally."
Shi Fumao vividly explained: "The purpose of selling kitchen knives is to cut vegetables, but buyers may use kitchen knives to commit crimes. ”
This means that whether employee online behavior monitoring is legal or not, the key is to see whether the product is used correctly.
The field employees of a certain company are all completed on their mobile phones shi songyu photo/this magazine
Monitor how measured employees are
When companies use products that monitor employees' online behavior, the issue that cannot be avoided is the privacy rights of employees.
Zhu Wei, deputy director of the Communication Law Research Center of China University of Political Science and Law, said that privacy is a civil right of every citizen, and obtaining personal privacy requires the prior consent of employees. The company's precondition for monitoring employees' online behavior is to fulfill the obligation to inform, and it must be effectively informed.
In accordance with the provisions of the "Personal Information Protection Law of the People's Republic of China", before handling personal information, personal information processors shall truthfully, accurately, and completely inform individuals of the purpose, processing method, types of personal information processed, and retention period of personal information in a conspicuous manner, clear and understandable language.
Obviously, whether the use of products that monitor employees' online behavior is legal, the first premise is to fulfill the relevant notification obligations.
Secondly, after the enterprise fulfills the obligation to inform, it still needs to grasp the degree of monitoring the employees' online behavior.
A number of interviewed experts clearly pointed out that the privacy rights of employees in the workplace will be limited to a certain extent, but monitoring should still be measured, and if the company really needs to take the necessary monitoring measures to achieve management purposes, it is also necessary to take the method with minimal impact on personal rights and interests. If abnormal monitoring methods are used to obtain employee privacy information excessively, it cannot be used as a reasonable basis for punishing and evaluating employees.
Third, whether the use of products that monitor employees' online behavior by enterprises is legal depends on how they handle relevant information.
Zhu Wei said that after complying with the relevant rules, enterprises can process employee information without obtaining employee consent, but this does not mean that the company can handle employee privacy information at will. The company needs to properly keep relevant information, must not illegally use, process, transmit, illegally buy, sell, provide or disclose other people's personal information, and must also open relevant complaint channels for employees.
As to whether the records of employees' online behavior can be publicized, Zhu Wei believes that it needs to be determined according to the company's explicit binding clauses in the labor contract, and some contents can be publicized internally, such as the traffic usage of various types of APPS, but chat records and other content involving personal privacy cannot be publicized.
How to determine the public-private boundary between time and space in the workplace
The company not only knows the employees' every move on the Internet, but also the rapid development of Internet information technology, so that every word and deed of employees in the company may be recorded.
In recent years, employers have continuously "innovated" the way of managing employee behavior, in addition to common surveillance cameras, there are GPS positioning tracking systems, induction badges, smart cushions, smart home sensors, toilet pit timers, etc.
There are even companies abroad that implant microchips in the hands of employees. The company says the benefit of implanting a chip is to bring convenience to employees. For example, you can open doors directly with a hand implanted with a chip, make a purchase, interact with office equipment and buildings within the company, and talk to a smartphone. Some experts also remind that companies may also be able to read employees' health status, working frequency, working hours and other information from the chip, and the threat to personal privacy needs to be paid attention to.
In a sense, monitoring employee behavior is nothing new. From the early days of human supervision to surveillance cameras, to the current various monitoring software and monitoring equipment, the behavior monitoring of employees has a long history.
Regarding the demarcation of the public-private boundary, Li Na, director of the Practical Teaching and Research Department of the Law School of the China Institute of Labor Relations, believes that the distinction between public and private cannot rely on whether the equipment used by employees is provided by the company as a standard. In the case of e-mail, even if an employee uses a company computer to send and receive e-mail, it does not mean that the company can "monitor" all e-mail messages, but make the necessary specifications.
It is understood that the mainland currently does not distinguish between the privacy rights of workers in the workplace time and space and the privacy rights of workers outside the workplace time and space.
Shi Fumao and other experts proposed that in this context, the monitoring principle of enterprises can draw on the "three work principles" of work injury identification, that is, in the working hours, work places, and work-related content, and appropriate monitoring can be carried out.
Regarding "appropriateness", Liu Xiaochun, executive director of the Internet Rule of Law Research Center of the University of the Chinese Academy of Social Sciences, believes that even if it is related to the content of the work, not any behavior can be monitored, and the principle of necessity must be met, that is, it is indeed indispensable, there is no other appropriate alternative method, and the damage caused to the parties is minimal.
Li Na suggested that the monitoring scope of employers can consider two paths:
First, the two parties to the labor relationship are given the right to fully negotiate, and on the basis of equality and voluntariness, the specific scope of the employer's involvement in the employee's privacy matters is determined through consultation.
Second, learn from the dual protection mechanism, that is, workers enjoy comprehensive privacy protection outside the "three jobs" and limited privacy protection within the "three jobs". "If an employer makes a monitoring request for an employee's non-work behavior, it needs to provide a strong justifiable reason and is a last resort after exhausting all other means." Li Na said.
It is worth noting that whether the company has installed a monitoring system, whether the scope and degree of monitoring are compliant, it is often difficult for employees to know, so they face certain rights protection dilemmas.
Zhu Wei said that under normal circumstances, who advocates who gives evidence, then if employees suspect that privacy has been violated, they need to provide preliminary evidence, and employees do have difficulties in collecting evidence. However, this is not an insoluble problem, the law tends to protect the weak, and it will be more inclined to protect workers in terms of labor rights protection, from this point of view, it is still beneficial to employees.
"Although employees are at a certain disadvantage, there are also channels to defend their rights. For example, you can complain to the industrial and information department, the Internet information department, the public security organ, etc. or apply for assistance, which is no technical problem for the professional department. Shi Fumao said.
Suspected violations wang Qitu/this journal
How efficiency management and privacy security balance
In the face of huge disputes over privacy, some companies still have no hesitation in paying for products that perceive and monitor employee behavior, with their own interests in mind.
Recently, a number of Korean media reported that Samsung Electronics found that an employee of its DS foundry department who planned to leave the company was working from home, and suspected of visiting and photographing the company's confidential information. Previously, Samsung Electronics has also been subjected to external cyber attacks on many occasions, resulting in the leakage of confidential data, resulting in losses.
Analysts said that from the company's position, it has a certain rationality to monitor the online behavior of employees, such as ensuring the company's safety and improving work efficiency. Some business managers believe that if they are not strictly managed, it is not only difficult to improve work efficiency, but also may face the risk of employees intentionally or unintentionally leaking company secrets. Both ideas related to business activities and technology-related procedures can pose challenges to a company's safe operations.
Shi Fumao said that the company has the need for monitoring, but it is difficult to completely separate work and life, and the physiological needs and relaxation needs of employees should be met. In addition, it is even more necessary to see the difference between the new generation and the old generation of employees.
Shi Fumao said bluntly that intranet monitoring is like two sides of a coin, which can stimulate the innovation of management models and improve management efficiency, but from the negative side, strict management methods may also cause employees to rebel and reduce work momentum.
Liu Xiaochun said: "This reduces the sense of belonging of employees, which may make enterprises unable to recruit talents, retain talents, and lose vitality and competitiveness." ”
Enterprises and employees have their own needs, for how to balance the relationship between the two, Shi Fumao believes that while keeping the legal bottom line, it is more necessary to strictly abide by the moral bottom line, pay attention to humanistic management, create a new model of management + service, management + guidance, management + encouragement, so that management from ruthless to sentient, so that employees feel respect and trust, to achieve a high level of management.
Zhu Wei suggested that the modern management system should pay more attention to individualization, which can be formulated in combination with different employees and different types of work. Results-oriented management may be more appropriate for some mental workers, and process management may be more important for grassroots workers and service workers.
Li Na gave a clearer management plan, that is, enterprises can consider writing various monitoring or intelligent management methods into the company's rules and regulations more clearly, and the employee representatives participate in the formulation, voted by the staff meeting, and determine the means, methods, scope, extent, relief channels, etc. of supervision through consultation.
"From participation in formulation to final implementation, it is necessary to actively promote the participation of trade unions in the whole process and give full play to the coordination and balance role of enterprise trade unions." Li Na said. ■