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Civil Code and Employees' Personality Rights

2020-09-29

Authors: Song Puwen, Fan Shihua
Translators: Normand Gauthier, Su Yiwei
 
Personality rights are the basic guarantee for the survival and life of natural persons. The Civil Code of the People’s Republic of China (the Civil Code) compiles personality rights into an independent section, and refines the relevant provisions of personality rights, which reflects a high attention to the protection of personality rights. Although labor law is a social law, due to the connection between labor law and the Civil Code, the promulgation and implementation of the Civil Code will also have certain impacts on the handling of legal relations in labor contracts. There are new requirements for business management in regard to the protection of employees’ personality right. In the daily employment management of enterprises, there will inevitably be conflicts with these protections, especially the protection of privacy and personal information, personal freedom and personal dignity rights highlighted in the Civil Code.
 
1. Common violations of personality rights
1.1 Personal information and privacy
In recruiting employees and managing daily work, companies often need to collect and save personal information of employees. Regarding the scope of collection, Article 8 of the Labor Contract Law of the People’s Republic of China stipulates: "(...)The employer has the right to know the basic information of the employee which is directly related to the labor contract and the employee shall faithfully provide such information." The basic information refers to matters of substantial significance related to the performance of the labor contract. This information usually includes the worker's personal identification information, working experience which reflects the worker’s ability and technical proficiency, qualification certificates or health information necessary for special positions, etc. In addition, in practice, during the recruitment process companies often require employees to provide information on “family members and main social relations”. Is this type of information necessarily related to the performance of the labor contract? What will the company do if the employee refuses to provide it? The promulgation and implementation of the Civil Code will bring great challenges to enterprises in that regards.
Collecting and processing personal information is covered in Article 1035 of the Civil Code:
The processing of personal information shall be subject to the principle of legitimacy, rightfulness and necessity, with no excessive processing, and shall meet the following conditions:  
(I) With the consent of the natural person or the guardian thereof, unless otherwise provided by laws or administrative regulations;
(II) Disclosing rules on processing information;
(III) Expressly stating the purpose, method and scope of information to be processed; and
(IV) Not violating the provision of the laws and administrative regulations and the agreement of both parties.
Processing of personal information includes the collection, storage, use, processing, transmission, provision and disclosure of personal information, etc.
According to the above provision, if an enterprise wants to collect and process personal information of an employee, it should obtain the employee’s authorization in writing in advance, and formulate and disclose information processing rules in accordance with the law, clearly stating the purpose, method and scope. Otherwise, it may be regarded as illegal processing of personal information.
In addition, in accordance with Article 1038 of the Civil Code on the protection of personal information:
Information processors shall not divulge or tamper with personal information collected or stored by them; without the consent of a natural person, information processors shall not illegally provide personal information of such person to others, except for information that has been processed so that specific persons cannot be identified and that cannot be restored.  
An information processor shall take technical measures and other necessary measures to ensure the security of the personal information that is collected and stored and to prevent the information from being divulged, tampered with or lost; where personal information has been or may be divulged, tampered with or lost, the information processor shall take remedial measures in a timely manner, inform the natural person concerned in accordance with the provisions and report the case to the relevant competent department.
 
Specifically, in practice, companies will conduct background checks on previous employers in order to recruit employees. After the implementation of the Civil Code, previous employers may face compliance risks when they provide employees' personal information to other company without authorization.
 
1.2 Right to reputation and honor
Articles 1024 and 1031 of the Civil Code elaborate on reputation and or honor respectively:
A civil subject shall enjoy the right to reputation. No organization or individual may infringe upon the right to reputation of any other person by such means as insult or libel…” and
A civil subject shall enjoy the right to honor. No organization or individual may unlawfully deprive other people of their honorary titles, or defame or belittle their honors…
Enterprises have the right to manage and evaluate employees in daily management, however they should pay attention to the protection of employees' reputation and honor. Not only must the enterprise itself not commit violations, but also prevent other employees from committing violations. Recently, Yamy, the former captain of 火箭少女101 (which translates to Rocket Girls 101), disclosed on Weibo that her company’s boss, Xu Mingchao, made remarks at the staff meeting that she looked ugly, had poor singing ability, was worthless, and had no sense of fashion. Such behavior might be deemed as a violation of reputation rights. In addition, a common violation of reputation rights made by companies may be reflected in the termination certificate. When a company issues a termination certificate for employees who terminate the labor contract, the company will not only specify the period of the labor contract, the date of termination or termination of the labor contract, and other necessary content, but also write some prejudicial comments. Such behavior may also be regarded as an infringement of employee’s right to reputation.
 
1.3 The right to personal freedom and human dignity
The personal freedom and personal dignity of employees are protected by law. According to Article 1011 of the Civil Code “Where a person is deprived of or restricted in his or her freedom of movement by such means as illegal detention, or makes an illegal search of another person, the victim shall have the right to request the person committing the act to bear civil liability in accordance with law.” In practice, many companies may be suspected of infringing on the personal freedom of employees if they take measures such as temporary detention when conducting disciplinary or compliance investigations, especially in investigations of theft and infringement of trade secrets.
Sexual harassment is a civil tort characterized by an infringement of the right to human dignity. Article 1010 of the Civil Code inclusion of sexual harassment into the civil law, makes it clear for the first time at the legislative level that sexual harassment is a tort. The responsibility of the company in preventing sexual harassment means that the company should take reasonable measures such as prevention, acceptance of complaints, investigation etc. to prevent and prohibit sexual harassment committed by abusing authority or affiliation. In other words, if the company has never taken any measures to prevent and stop sexual harassment, or even deliberately condone sexual harassment after it occurs, the company may be liable for relevant torts. Additionally, the employee may, under Article 38 of the Labor Contract Law, terminate the labor contract and claims for economic compensation on the grounds that the company could not provide labor protection. This also has a precedent for support in practice.[1]
 
2. Liability of tort in enterprise management
2.1 Liability of the enterprise for tort
If an enterprise infringes on the personal rights of individuals, the liabilities can be found with Article 995 of the Civil Code:
Where the personal rights are infringed, the victim shall have the right to request the infringer to bear civil liability in accordance with the provisions hereof and other laws. The provisions on the limitation of action shall not apply to a victim's rights to request for cessation of an infringement, removal of an obstacle, elimination of danger, elimination of ill effects, rehabilitation of reputation or extension of a formal apology.
For certain specific types of infringement, enterprises may also need to bear corresponding administrative and even criminal liabilities in accordance with the law as stipulated in Article 88 of the Labor Contract Law: “Where an employer is under any of the following circumstances, it shall be given an administrative punishment. If any crime is constituted, it shall be subject to criminal liabilities. If any damage is caused to the employee, the employer shall be liable for compensation:
(…)
3. To insult, corporally punish, beat, illegally search, or restrain any employee...
 
2.2 Handling the individual liable for tort
Under normal circumstances, only the acts performed in the name of the enterprise by its employees in the execution of their work tasks is constituted as infringement by the enterprise. As for the infringement of personality rights described in this article, in some cases, when the infringement occurs during the performance of work tasks, such as infringement of reputation and personal dignity, the actions taken by the enterprise as an employer upon learning of the infringement may lead to different liability. For example, if an employee has sexually harassed a subordinate employee, but the company does not accept or ignore the complaint, the company may be deemed to be liable for the corresponding tort; if the company actively stops the infringement and conducts disciplinary actions in accordance with relevant laws and regulations, it may be relieved of or be exempted from liabilities.
 
3. Precautions in employment management
The section of personality rights in the Civil Code puts forward more requirements on the employment management of enterprises than in the past. As a result, the enterprise takes more risks when exercising its right of management. For this reason, we suggest that enterprises can pay attention to the following aspects.
 
3.1 Construction of corporate culture and rules
When an enterprise builds its corporate culture and rules and regulations, it must ensure that the content is legal and reasonable, and that there is no content that violates the personality rights of employees. In practice, some corporate cultures or regulations require employees to be absolutely loyal to the company, preferring to exercise comprehensive control over them. For example, in order to build a so-called “team cohesion”, some companies have been reported in medias to order employees to slap each other and to undress. This is a typical violation of employees’ dignity. Moreover, as mentioned previously, in accordance with the requirements of the Civil Code for the protection of personal rights by enterprises, companies can specifically increase the protection of personal rights when formulating rules and regulations, especially for personal information protection and workplace sexual harassment prevention. The enterprise should formulate special rules for the collection and management of employees’ personal information, clarify the purpose, method and scope of information processing, and increase preventive and handling procedures of sexual harassment in the workplace.
 
3.2 Investigate and manage employees’ violation
The protection of personal information and personal freedom of employees often appears in the process of corporate compliance investigations and information collection and processing. The essence is the conflict between the company’s right to know and employee’s privacy and personal freedom. The protection of personal information and personal freedom of the law shall not be violated. Specifically, if companies conduct compliance investigations on employees who violate disciplines, they should use investigation methods that stay within legal and reasonable limits and try to avoid using methods that may be suspected of infringing on privacy and restricting personal freedom. For example, avoid installing surveillance in non-workplaces, or searching for personal belongings without the employee’s consent and favor conducting general inquiries and investigations on employees regarding violations of discipline and law. If further investigations are required, a professional team of lawyers can be hired, and it is better to avoid an investigation of unreasonable length or outside of the workplace.
 
3.3 Personal information management of incoming and outgoing employees
When a company recruits new employees or handles employee resignation, it is also a critical period for personal information processing. The Civil Code and related laws and regulations all emphasize that the collection and processing of employees' personal information should be authorized in writing in advance. Thus, it is required that the company and employees shall reach an agreement over personal information in advance, including the background check information, resumes submitted by employees, personal information forms filled by employees, and personal information storage and processing after employees leave etc. The company should be careful when handling entry and resignation and keep relevant evidence.
 
Every employee is a civil subject enjoying various civil rights stipulated in the Civil Code and every enterprise should respect their personality rights. In practice, some companies tend to misunderstand and neglect the importance and protection of employees’ personality rights in their HR management. The issuance of the Civil Code highlights the respect and protection of personality rights and also puts forward new requirements for enterprise HR management. In handling the enterprises right to management and the employees’ personality rights, companies should be mindful of the relevant provisions of the Civil Code and protect employees’ personality rights to the greatest extent in an effort to reduce potential legal risks for the company.
 

[1] Obtain over CNY 10,000 for resignation due to sexual harassment in the workplace (2019), Changzhou Daily, retrieved on 2020-08-01, http://epaper.cz001.com.cn/site1/czrb/html/2019-04/25/content_278685.htm

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