Lawyer's Perspective | The company conducts a feasibility analysis of unpacking inspection for employees
Special statement: This article is reprinted in Beijing Jingshi (Zhengzhou) Law Firm
Author: Qi Xuanjie trainee lawyer
【Zhuhai lawyer, Zhuhai legal consultation, Zhuhai law firm, Jingshi law firm, Jingshi Zhuhai law firm】
I. Introduction
In 2013, Apple's retail stores were collectively sued by employees for searching their bags at the end of the day to prevent theft. Nine years later, the tug-of-war was officially reconciled. According to the terms of the settlement agreement, Apple needs to pay about 200 million yuan in compensation to 14,683 employees in California. It is understandable to require employees to make a card after work, but requiring employees to search their personal belongings after work often violates personal privacy and has been criticized.
2. Legal provisions
According to Article 103 of the Civil Code, "natural persons enjoy the right to privacy. The privacy rights of others must not be infringed upon by any organization or individual through methods such as espionage, intrusion, leakage, or disclosure. ”
According to Article 4 of the Labor Contract Law, "an employer shall establish and improve labor rules and regulations in accordance with the law to ensure that employees enjoy labor rights and perform labor obligations." When formulating, revising or deciding on rules and regulations or major matters directly related to the vital interests of employees, such as labor remuneration, working hours, rest and vacation, labor safety and health, insurance and welfare, employee training, labor discipline, and labor quota management, the employer shall discuss with the workers' congress or all employees, put forward plans and opinions, and negotiate with the trade union or employee representatives on an equal footing. In the process of implementing the rules and regulations and decisions on major matters, if the trade union or employees deem it inappropriate, they have the right to propose it to the employer and revise and improve it through consultation. ”
Employees' backpacks, trunks, mobile phones, and bank statements belong to their personal property and privacy, and the company certainly has no right to inspect them without authorization. If the company has rules and regulations for checking backpacks, trunks, mobile phones, and bank statements without consulting with employees, then the rules and regulations are invalid. In the process of the company's operation, if you want to include the regulations on the inspection of employees' backpacks, trunks, mobile phones, and bank statements into the rules and regulations, you must pay attention to negotiating with employees and organizing employees to learn in a timely manner, in order to obtain effective authorization from employees.
3. Relevant cases
1. Case No.: (2014) Chongmin Chu Zi No. 0850
In this case, the hotel's Employee Handbook stipulates that employees should cooperate with security personnel to inspect their personal backpacks and other items when entering and leaving the hotel, that employees should fully understand the purpose of the inspection and fully cooperate, that employees may report to the manager of the security department if they believe that the security personnel have unreasonable behavior during the inspection, and that the company has the right to terminate the labor contract if they do not cooperate and the circumstances are serious.
One day, the hotel security guard inspected Rong Xifeng's satchel when the employee left work, and Rong Xifeng initially cooperated with the inspection. When the security guard asked for a further inspection of the inside of the bag, Rong Xifeng refused and left the hotel in an electric car. Later, the company determined that Rong Xifeng's behavior was a serious violation of discipline and terminated the labor contract. Rong Xifeng argued that the company's termination of the labor contract was illegal on the basis of the company's invasion of privacy.
The Chong'an District People's Court of Wuxi City held that "the law does not allow employers to have the right to search the body of others. The employer shall not illegally search the worker, including the worker's body, belongings, bags, etc. The provisions of the "Employee Handbook" of Grand Park Hotel are illegal and invalid. ”
2. Case No.: (2015) Yu Yi Zhong Fa Min Zhong Zi No. 04774
The "Internal Security and Security Management System", which has passed the democratic publicity procedure, stipulates: "obstructing, refusing to inspect, or threatening security team members on public security duty or other staff...... If it is a serious violation of discipline, the labor contract will be terminated. ”
When Zhu Yuanchun left the work area after work, the metal detector set up at the exit of the workshop sounded an alarm. The company's staff asked Zhu Yuanchun to do a further inspection, but Zhu Yuanchun did not agree to accept the inspection and returned to the workshop. Later, Taishan Company reported to the labor union for Zhu Yuanchun's refusal to accept the factory inspection and made a penalty decision.
In its ruling, the Chongqing No. 1 Intermediate People's Court stated: "There was nothing improper in its actions when the metal detector sounded the alarm and Taishan requested further examination of Zhu Yuanchun on the basis of reasonable suspicion......
In the case (2014) Chong Min Chu Zi No. 0850, the company adopted a routine body search for every employee without any reason. In the case (2015) Yu Yi Zhong Fa Min Zhong Zi No. 04774, the company's approach was much more reasonable, setting up metal detectors at the factory gate, and when the equipment was alarmed, the company's staff conducted further inspections on employees based on reasonable suspicion.
It can be seen from the above two cases that if a company wants to search an employee's backpack, trunk, mobile phone, and bank statement, it can take corresponding action, but it should be noted that the company should stipulate in the relevant rules and regulations that the employee is subject to inspection and obtain the employee's consent, but the court will determine whether the search itself is lawful and reasonable, and actions based on reasonable doubt are more likely to be supported by the court. In practice, a common "reasonable doubt" can be a hint from the relevant testing instrument, a video recording from a camera, or other objective and reasonable evidence.
Fourth, the lawyer's point of view
Prohibiting and preventing all commercial bribery and internal corruption is an important purpose of corporate governance. For this purpose, the company attaches great importance to the occurrence of employee misappropriation of company property. In the process of building the company's internal integrity system, the company tends to incorporate the unpacking inspection of employees into the rules and regulations, but the company's inspection of employees' personal belongings conflicts with the law, and it is recommended that the company add employee authorization provisions to the formulation of this system to strive to be reasonable.
(1) Suggestions for setting up clauses
Incorporating the inspection of employees' backpacks, trunks, mobile phones, and bank statements into the company's system is of great value for the promotion of the company's internal anti-corruption construction. However, when setting up the system, it is necessary to do a good job in the adaptation of provisions and authorization management, so as to achieve logical smoothness and self-consistency.
For example, employees can take possession of the company's property by loading the company's property into the backpack and taking the trunk out of the company.
The proposal reads: "Employees of the company are prohibited from taking advantage of their positions to occupy or misappropriate the company's property." Upon being reported or clues about the above-mentioned conduct by employees, the employees involved in the case voluntarily accept inspections by the discipline inspection departments, including but not limited to inspections of personal containers such as backpacks and car trunks, and where the employees refuse to accept inspections, they are to be transferred to the public security organs for handling. ”
The loss of the company's alcohol generally involves private transactions reached on social software, transfers on WeChat and Alipay, and changes in bank statements, so it is more reasonable to include the inspection of employees' mobile phones and bank statements in the "Integrity System". Personal telephone and bank statement information belong to personal privacy, and no one has the right to view it without the consent of the owner. Therefore, companies that want to check employees' mobile phones and bank statements also need to be effectively authorized by employees.
The suggestion is as follows: the company's employees consciously accept the management of the prevention of commercial bribery and corruption supervision and management department (discipline supervision group), and the discipline inspection team finds that the employees are corrupt, and the employees voluntarily cooperate with the discipline inspection team to inquire about their mobile phone transfer records and bank statements, and if the employees refuse to accept the inspection, they will be transferred to the public security organs for processing
(2) Suggestions for the implementation of the provisions
From the perspective of business operation, to prevent employees from stealing, "bag search" is the easiest way, but this is easy to break through the boundaries of the law, so the company should pay attention to the way to implement this provision, and the company can adopt the model of "prevention + governance".
Specifically, the company can set up a special area to store employee backpacks during work to control goods within a certain range. This way of managing items rather than checking people can prevent theft and will not cause trouble to people who enter and exit normally. If the employer has a reasonable suspicion or evidence and the employee refuses to be inspected, our lawyers suggest that the employer should be cautious about this issue, and if the employee refuses to accept the inspection, there is a risk that the employer's compulsory inspection will infringe on personal privacy. In order to avoid risks, it is best for the company to be handed over to the public security organs for handling.
About the Author:
Qi Xuanjie
Beijing Jingshi (Zhengzhou) Law Firm, trainee lawyer
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Editor / Wang Mengnan
Review / Jin Fangzhou