How legitimate are employee tracking programs?
“At work, you need to do work affairs” - this phrase snapped at everyone who worked at least any significant amount of time as an employee. But those of employees who have climbed the career ladder feel how attitudes toward such attitudes change when he becomes a leader. Especially when it comes to protecting trade secrets or simply monitoring the effectiveness of the department.
A couple of months ago, our blog published an overview of our program for monitoring the activities of employees in the workplace of StaffCop Standard “ Under the hood”, And after its publication, we received a large number of reviews, including with questions about how this is regulated by the laws of Russia. Naturally, we could not leave this topic unattended. Under the cut, we will tell you about the legal regulation of control over employees at the workplace - we are sure this material will be useful for both employers and employees who want to protect their rights. Read it!
In one form or another, the work of employees has always been monitored by employers: earlier, for this, it was necessary to keep paper records or to set aside an individual employee to oversee the work of everyone else, now that most of the main working tool is a computer, special control programs are used. But how legal is this?
Legal field
The law does not separate into separate groups the relations arising between the employee and the employer using or without computer equipment. It is not possible to develop a new amendment every time a new computer program appears. Yes, this is useless. Legal relations, their subjects, the essence and the result do not change with the modification of production tools. Whatever programs are used, we are dealing with the same labor relations in which the employee is obliged to perform work during working hours, and the employer is required to pay for it.
Art. 21 of the Labor Code of the Russian Federation obliges an employee to carry out work qualitatively:
“an employee is obliged to: conscientiously fulfill his labor duties assigned to him by an employment contract; comply with the internal labor regulations ... ".
Art. 22 of the Labor Code of the Russian Federation gives the employer the right to control it. In addition, Art. 189 of the Labor Code of the Russian Federation determines the rules of the internal labor schedule.
The use of employee control programs does not contradict these standards. Moreover, an additional guarantee of mutual understanding for the parties may be the conclusion of an agreement, which will indicate the need to use such programs. In this case, the employer will not intentionally violate the rights of the employee.
There is an internal work schedule, the employee is familiar with it. The use of control programs is notified. And that means that constitutional rights are not violated (Articles 23, 24 of the Constitution of the Russian Federation). The lack of intent of the employer knocks the soil out of the hands of supporters of bringing the chief to justice under Art. 13.11 of the Code of Administrative Offenses of the Russian Federation “Violation of the statutory procedure for the collection, storage, use or dissemination of information about citizens (personal data)”, art. 137 of the Criminal Code of the Russian Federation “Violation of privacy” and Art. 138 of the Criminal Code of the Russian Federation "Violation of the secrecy of correspondence, telephone conversations, postal, telegraphic or other messages."
Important points
Firstly, it is necessary to distinguish between personal information and official information; at the workplace, a person is obliged to process and work with official information that the employer has the right to control. At the workplace, the employee must use the PC as a work tool and process service information.
Having come to work, the employee does not have his time, he sold this time to the employer, thus, it turns out that the person spending the working time on personal needs a priori violated the employment contract, not to mention the moral and ethical side. Of course, we can say that it’s all the little things and a couple of messages in the contact mean nothing, but if you transfer it all to the framework of a secret factory or other strategic object, it turns out that this is not a joke. For commercial structures, there are also all sorts of information that is better not to disclose. Of course, it will not allow us to enslave foreign invaders, but it could well endanger the existence of one particular enterprise.
The second important point is the transparency of their use. The employee will work with greater efficiency, knowing exactly which functions of the monitoring program are activated, what information can be collected, etc. Just understanding this will be the motivation for using working time for work purposes.
The third factor is self-motivation. Many freelancers use programs to control their work time - not for prying eyes, of course. It is better not to use the computer on which the monitoring program is installed at all for relaxation - there is a telephone, the opportunity to go out for a smoke / drink coffee, and communicate with colleagues. In terms of stress management, this is much more beneficial.
And finally, the leader must understand his responsibility: he must manage the enterprise, and not track his subordinates. The manager must be aware that the misuse of personal information that may come to him in the process of collecting service information can be prosecuted and this is at least ethical. The deliberate secret collection of personal information of an employee is illegal.
In developed countries with a rich history of protecting rights and freedoms, a formula has long been in effect according to which the percentage of public is inversely proportional to the percentage of private. The point is, a freelancer can work without leaving home in any form - a minimum of publicity, a maximum of personal space. While an employee of an elite corporation is forced to leave almost everything private behind the door of the working office and 8 hours a day to be 100% public person.
Another aspect
The employer should explain to employees that the implementation of monitoring systems is aimed at improving the efficiency of personnel and its optimization, which is often useful for the employees themselves. In our opinion, this is far more humane than the situation during the recent crisis, when everyone was dismissed indiscriminately, and the father of a family with a mortgage and small children could be unemployed. Monitoring and control tools allow you to see really working people, rather than skillfully pretending, this is a much more objective assessment factor than making decisions about dismissal on the basis of the manager’s personal attitude to employees.
Summary
The employee must understand that when he comes to work, he will be obliged to focus on its implementation. Moreover, he clearly knows the forms and methods of control and surprises for him are not expected. In addition, liability for manifest violations of rights is expressly provided for by applicable law. Ultimately, it is a matter of a person’s personal choice: type of activity, format of work, company, in the end.
The employer must be aware of the responsibility for the deliberate secret collection of information (without the knowledge of the employee) and be able to explain the need to use control in this form.
Thus, with a legally competent approach, there are no problems in using such programs. You just need to be able to find the right solutions and fix them in mutually beneficial agreements. The employee and the employer should not be on opposite sides of the barricades, but understand what they are doing a common cause and respect the rights and responsibilities of each other, clearly fulfilling mutual responsibilities.
PS We'd love to hear in the comments of the issues related to the company's products AtomPark Software : service email and SMS-mailing ePochta and program control Information Security StaffCop .
PPS And also representatives of Atompark will take part in tomorrow, November 30, St. Petersburg habravstrech! We will be glad to meet our readers personally;)