Original title: After leaving the job, the ID card was exposed, and it was "blacked" by the company? Lawyer: Employee privacy has been violated
Recently, the topic of the woman's ID number being publicized after leaving her job has aroused discussion among netizens.
Is the store in question infringing? How can workers protect their rights? Let's take a look.
After leaving the job, the store posted the ID number
On July 14, a woman in Zhoukou, Henan Province, posted on social platforms that after she resigned from Bawang Chaji, she was posted by the store with her ID number for publicity, and also said that she was suppressed by the store manager when she went to work. As can be seen from the screenshot, the announcement reads: Employees of Fugou Yifeng Plaza have violated the company's regulations many times, causing adverse effects, and after the company's research, they will be expelled and blackened, and they will not be allowed to engage in any related work of Bawang Chaji for three years.
(Screenshot of publicity)
The woman said that she contacted the store afterwards, and the store said that the announcement was only posted for 1 hour, in order to post it to the supervisor. But the woman questioned that she had already left her job, why did she still post a public notice with her ID number on it. The other party said that if the woman wants to make trouble and go to the branch, don't look for him.
The store involved apologized overnight
On July 15, the staff of Bawang Chaji said that the employee had a dispute with the customer and was complained, and the announcement was to appease the customer, the ID card information on it was fake, not the employee's, and the notice had never been posted, and I didn't know where to throw it on the day it was printed.
With the fermentation of public opinion, the official account of Bawang Chaji issued a document on the 15th, saying that the company has asked the store to immediately "cancel the publicity", suspend the person in charge of the store involved and the person in charge of regional management, and set up a special team to go to the local area to verify the information and situation, and asked the store to "contact the partner with the company to apologize and condole".
(Apology statement of the store involved)
Netizens questioned: Is it illegal?
After the incident appeared on the hot search, it aroused netizens' dissatisfaction with the company's management methods and their concern about the privacy of employees. Some netizens questioned whether the store's behavior had violated the law.
Lawyer's interpretation: infringement of privacy
According to the Civil Code of the People's Republic of China, the processing of personal information shall follow the principles of legality, legitimacy and necessity, shall not be excessively processed, and the consent of the natural person or his guardian shall be obtained.
The lawyer said that under the circumstance that the identity of the employee can be identified through the combination of name, portrait and other information, the disclosure of the employee's ID number, name and other information by Bawang Chaji has exceeded the necessary limit and infringed on the employee's privacy and personal information rights. One of the conditions for privacy to be established is that the information is kept private and not generally known to the public. Even if Bawang Chaji needs to disclose the personal information of employees due to internal management needs, it should follow the principles of legality, legitimacy and necessity.
The editor of "Workers' Daily" sorted out several cases of employees being infringed by the company after leaving their jobs:
Case 1: The company puts the departing employee on the "blacklist"
A company set up a "blacklist", included the departing employee Jiang in it, and informed other companies of the "blacklist", and the departing employee took the original company to court. The court ruled that the company constituted an infringement of Jiang's equal employment rights, ordered the company to remove Jiang from the company's "blacklist", and compensated Jiang for the loss of 22,500 yuan for 3 months of lost work.
Court:
The court held that the establishment and application of the "blacklist" set up by the employer included serious violations of the company's rules and regulations, such as the employee's gross fault, such as the employee's serious violation of the company's rules and regulations, and the employee's criminal liability, and did not exceed the reasonable scope of the exercise of the employee's autonomy. However, if the employer is included in the "blacklist" because the employee has lawfully obtained economic compensation, or the employee has lawfully defended his or her rights after a dispute arises with the company, the employer has improperly set employment conditions, which obviously exceeds the scope of employment autonomy and constitutes an infringement of the employee's right to equal employment.
Case 2: Slandered by the former company after leaving the company
On October 19, 2021, the personnel manager of An's company sent a mass email to more than 200 employees through the company's internal mailbox, saying that the departing employee Luo had stolen the company's trade secrets and colluded with suppliers to charge inflated prices during his employment, causing losses to the company, and had been suspected of infringing on trade secrets, and was filed and dealt with by the judicial authorities. Luo believed that the company had no evidence, fabricated facts, violated his right to reputation, and caused himself to suffer a great mental blow, so he sued the court.
Court:
The court held that civil entities enjoy the right to reputation in accordance with law, and that no organization or individual may infringe upon the right to reputation of others by means such as insult or slander. In this case, in the absence of factual basis, An's company sent emails containing slander Luo's image to employees, and the relevant acts affected others' social evaluation of Luo, causing damage to Luo's reputation, which is an infringement of others' reputation rights by defamation, and should bear tort liability in accordance with law.
Case 3: The company uses photos of departing employees for publicity
Mr. Sun joined the dental clinic in 2015 and resigned in 2016. During his employment, Sun took two photos in his work clothes. In 2019, the Dental Clinic A was cancelled, and the Dental Clinic B took over the operation at the original site. The dental clinic of B included the first photo in the album it produced and showed it to the customer, and the customer took a photo of the photo page and uploaded it to a website and gave a positive review; After seeing his photos on the website, Sun believed that the Yi Dental Clinic had infringed on his portrait rights and caused mental damage and economic losses to himself, and that he should stop his infringement and make financial compensation to himself.
Court:
The court held that natural persons enjoy the rights to life, body, health, name, portrait, reputation, honor, privacy, and marital autonomy. A portrait is an external image that can be identified by a specific natural person reflected in a certain medium through means such as images, sculptures, paintings, etc., and the portrait of the portrait rights holder must not be produced, used, or disclosed without the consent of the portrait rights holder. According to the facts ascertained in this case, the use of photographs with his portrait by the dental clinic without Sun's consent to make promotional brochures and upload them to a website is in the nature of advertising, and its behavior meets the constitutive elements of infringement of portrait rights as prescribed by law, and the infringement of dental clinic B is established and it should bear tort liability.
Case 4: The unit seized the files of the departing employees
In June 2006, Zhang worked for a company, and after his contract expired in February 2013, he continued to work until June and then left. In February 2016, Zhang asked the company to go through the transfer procedures for his personal files and social insurance, but the company refused to handle it, saying that Zhang had resigned abnormally at that time, which violated the company's regulations. In desperation, Zhang had no choice but to "go to court" with his original work unit.
Court:
After trial, the court held that some employers violated the relevant provisions of the law by refusing to transfer relevant files and social security files in order to restrict employees from changing jobs, or on the grounds that they had other pending disputes with employees. The relationship between the worker's file and social insurance is related to the worker's re-employment and related social welfare, and the seizure of the file is a serious violation of the law and infringement. Therefore, the employer should study and understand the law, otherwise it will bear the corresponding legal consequences.
The editor reminds that before leaving, these matters should be paid attention to
Under what circumstances can an employee terminate an employment contract?
Article 38 of the Labor Contract Law stipulates that an employee may terminate an employment contract under any of the following circumstances:
(1) Failure to provide labor protection or working conditions in accordance with the provisions of the labor contract;
(2) Failure to pay labor remuneration in full and in a timely manner;
(3) Failing to pay social insurance premiums for workers in accordance with law;
(4) The rules and regulations of the employer violate the provisions of laws and regulations and harm the rights and interests of workers;
(5) The labor contract is invalid due to the circumstances provided for in the first paragraph of Article 26 of this Law;
(6) Other circumstances in which the labor contract may be terminated as provided by laws and administrative regulations.
If an employer forces an employee to work by means of violence, threats or illegal restriction of personal freedom, or if the employer violates rules and regulations and orders risky work that endangers the employee's personal safety, the employee may immediately terminate the labor contract without prior notice to the employer.
Do I need a certificate from the employer when I leave the company?
Article 50 of the Labor Contract Law stipulates that the employer shall issue a certificate of dissolution or termination of the labor contract when dissolving or terminating the labor contract, and complete the formalities for the transfer of the employee's file and social insurance relationship within 15 days. The worker shall handle the handover of work in accordance with the agreement between the two parties; If the employer shall pay economic compensation to the employee in accordance with the relevant provisions, it shall pay it at the time of completion of the work handover.
What is the amount of severance compensation?
Paragraph 1 of Article 47 of the Labor Contract Law stipulates that severance shall be paid to the employee according to the number of years of service in the employer and one month's salary for each full year. where it is more than six months but less than one year, it is calculated as one year; If it is less than six months, the worker shall be paid half a month's salary.
Do I need to pay for training when I leave my job?
Article 22 of the Labor Contract Law stipulates that if an employer provides an employee with special training expenses and professional and technical training, it may enter into an agreement with the employee to stipulate the service period. If the employee violates the service period agreement, he shall pay liquidated damages to the employer in accordance with the agreement, and the amount of the liquidated damages shall not exceed the training fees provided by the employer, and the liquidated damages required by the employer shall not exceed the training expenses that should be apportioned for the unfulfilled part of the service period.
What should I do if I don't use up my annual leave when I leave my job?
If the annual leave is not used up at the time of resignation, the employer must convert it into salary. According to Article 12 of the Measures for the Implementation of Paid Annual Leave for Employees of Enterprises, when an employer dissolves or terminates a labor contract with an employee, if the employee fails to arrange for the employee to take the full number of annual leave days in the current year, the number of days of unused annual leave shall be converted according to the employee's working time in the current year and the wages and remuneration for the unused annual leave shall be paid, but the part of the unused annual leave shall not be paid for less than one full day after conversion.
If the employer has already arranged annual leave for employees in the current year, the number of days exceeding the annual leave that should be taken will not be deducted.
(Comprehensive sources: Morning News, Chao News, Anqing Intermediate People's Court, Red Star News, Guangdong Provincial High People's Court, Yanzhao Evening News, People's Daily, Xinhua News Agency, etc.)
Source: Workers' Daily client