Where are the boundaries for employers who want to access employees' personal information?

Recently, the topic of "woman's false declaration of marriage and childbirth was terminated from the labor contract" rushed on the hot search, some citizens roughly look at the topic in unknown detail, pointing the finger at the woman's "false declaration". The truth of the matter is that the woman was terminated from her employment contract after she misrepresented her marital status.

Viewpoint 1

Marriage and childbirth cannot restrict women's employment

In the above case, the court of the first instance held that although the woman had misrepresented her marital status, her marital and childbearing status was not necessarily related to the performance of her employment contract and belonged to her privacy, and therefore misrepresenting her marital status at the time of employment did not constitute fraud.

In fact, at the legal and regulatory level, marital and childbearing status is not necessarily related to the workplace job, it is personal privacy, and usually, the employer has no right to ask about it at all. This is not new, as the Employment Promotion Law stipulates that "Employers hiring female workers shall not stipulate in the employment contract any restrictions on female workers' marriage or childbirth."

In 2019, the Circular on Further Regulating Recruitment Practices to Promote Women's Employment, issued by the Ministry of Human Resources and Social Security, the Ministry of Education, and nine other departments, also mentions that: no restrictions on gender (except in cases such as the scope of prohibited work for female workers as stipulated by the State) or gender preference may be imposed, no restrictions on women seeking employment or refusal to hire women based on gender, no inquiries about women's marital or childbearing status, no pregnancy tests as entry medical examination items, not to make restrictions on childbirth a condition of employment, and not to differential raise the standards of employment for women.

Viewpoint 2

Information not related to the position is personal

It would have been indisputable that female employees should not be asked about their marital status. But this case has prompted many citizens on the internet to strike a chord as if they have discovered some new point of knowledge. This shows that people are still relatively unfamiliar with such a provision, and in reality, most people are not aware of the various types of personal information that are required to be filled in when joining a company, and which personal information is not required to be filled in.

Article 8 of the Employment Contract Law specifies the "right to know" of both employers and employees, and the "right to know" of one party corresponds to the "duty to inform" of the other party. The employer has the right to know the basic information of the worker directly related to the employment contract, and the worker shall truthfully explain. However, this provision and the relevant laws and regulations do not use an enumeration approach to the "right to information" of the enterprise.

Articles 1032 and 1034 of the Civil Code define "privacy" and "personal information" respectively, "privacy" being the private life of a natural person and the private space, private space, private information that he or she does not want others to know. Personal information" is all kinds of information recorded electronically or by other means that can identify a specific natural person alone or in combination with other information, including a natural person's name, date of birth, identity document number, biometric information, address, telephone number, e-mail address, health information, whereabouts information, etc. The personal information of a natural person includes name, date of birth, identity document number, biometric information, address, telephone number, e-mail address, health information, whereabouts information, etc. For private information in personal information, the provisions on privacy shall apply; if there are no provisions, the provisions on the protection of personal information shall apply.

From the definition, it can be seen that privacy includes both private life and private secrets, while personal information places more emphasis on the identification of identity.

Viewpoint 3

Employees should be honest with their employers

The concealment of personal information is extremely common in the modern workplace. Although it is indisputable from the above case that companies are not allowed to ask female employees about their marital status, some citizens believe that employees' concealment or misrepresentation is against the principle of honesty.

The principle of honesty and trustworthiness is a fundamental principle of being a human being and a basic principle of the Civil Code. Article 7 of the Civil Code requires people to be honest and trustworthy in their civil activities and exercise their rights and fulfill their obligations properly. It is generally accepted that the basic meaning of the principle of honesty and trustworthiness is that parties should be honest and trustworthy in their market activities, keep their promises, be honest and not deceitful, and not harm the interests of others and society while pursuing their interests, and require civil subjects to maintain a balance between the interests of both parties and the interests of the parties and society in their civil activities.

Some citizens pointed out that, based on the principle of honesty, employees should still be honest and trustworthy to the enterprise. First of all, enterprises need people who work conscientiously for the company. An employee who lacks integrity inevitably makes people doubt whether he or she will do his or her job at the workplace. Furthermore, the reason why the integrity of employees is valued by companies and organizations is that the integrity of individuals directly affects the integrity of companies and organizations. Imagine a business where everyone is dishonest and irresponsible about their work, what makes a business win the market?

Point 4

Personal information should be collected with the consent of the worker

Personal information, a social business card for every person in the workplace, can be classified as personal information of the worker, from small things like name and contact details to large things like ID numbers and family relationships. Many people have the impression that "personal information" is equated with "privacy", but the newly implemented Civil Code makes a clear distinction between the two.

The only reason for employers to have personal information about workers is to better manage their employees. But this does not mean that the more personal information you have, the better you can manage it. From a legal point of view, the possession of personal information by the employer is based on the management rights granted by the Lab our Law of China, but it is also a test question for the employer. After all, the collection of personal information lawfully and reasonably reflects the respect of an enterprise for its workers, and respect for every worker is an effective way to promote the development of an enterprise.

According to Article 1035 of the Civil Code, the handling of personal information shall be by the principles of legality, propriety, and necessity, and shall not be excessive. Therefore, employers must be cautious in collecting and using employees' personal information by informing and obtaining consent in advance, otherwise, it will likely be considered an infringement of employees' privacy.

In addition, some citizens pointed out that it is recommended that if the employer wants to conduct "background checks" on employees, it should clarify the matters and scope of the investigation to the employees, sign an agreement with the employees in advance, or obtain their written consent to avoid unnecessary disputes later.

Post-90 s view

Married women seeking employment should receive more attention

This case has aroused a lot of attention, reflecting the current situation of most married women seeking employment, and the court's decision reflects the strength of the judiciary's intervention in such cases. Marital status does not constitute a barrier for women in the workplace, it is a matter of women's willingness to have children and the fertility rate of society, and it is a matter of gender equality and the fight against gender discrimination. As such, this case may have struck a chord with many women in the workplace.

However, the author believes that to solve this kind of problem, in addition to allowing employers to curb their penchant for "prying" and control the room for irregularities in workplace discrimination, the interests of the enterprise should also be taken into consideration

As far as women are concerned, whether and when they choose to have children is their private matter and should not be restricted or obstructed by companies. However, the fundamental problem that makes it difficult for women to find employment is that, for companies, recruiting women of childbearing age means higher labor costs, which may affect the interests of the company.

Therefore, when faced with the dilemma of childbirth and work, it is important to consider the interests of the enterprise and to think of a solution that will satisfy both sides.

There is indeed no time to lose the employment problem of women of childbearing age. However, I believe that the only way to eradicate the persistent problem of gender discrimination in the workplace is through a combination of measures. Firstly, in terms of legal protection for women in childbirth, the state should establish and improve relevant policies and regulations so that there is a law to follow; secondly, the punishment for enterprises that violate the law should be increased; at the same time, relevant supporting measures should be improved, for example, the government should share part of the extra cost of employing female employees, so that enterprises can bear social responsibility while maintaining economic efficiency and benign development.

Post-70 s view

No wonder employees are "resistant" to the idea of "inquiring"

When employees "misrepresent" their personal information, it is often due to an internal "resistance". One of the underlying reasons for this resistance is the lack of a bottom-line approach to information gathering by employers.

Where do the children go to school? What kind of work do the parents do? ...... Many unusual jobs often ask these questions, and although we have grown accustomed to them, the fact is that this information has "nothing" to do with the work of the employee concerned.

This "genealogical" collection of personal information, which sometimes includes property, marital history, and sexy, AL orientation, is a common practice. It is difficult not to resist this kind of "genealogical" collection of personal information, which sometimes includes property, marital history, and sexual orientation.

Therefore, employers must have a sense of boundaries when collecting information about employees, even if it is for their benefit. This is not only stipulated by laws and regulations but is also directly related to the hearts and minds of employees.