The common feature of "soft torts" is not that "the harm does not exist", but that it is difficult for workers to produce direct evidence to prove that they have been infringed upon when they are harmed. To solve this dilemma, we should move the threshold of "hard constraints" forward. Put the employer's employment management behavior into a clear "cage of rules", let implicit infringements in the workplace bear the explicit illegal costs, and achieve a win-win situation between the protection of workers' rights and interests and the healthy development of enterprises.
“Online behavior will be monitored, and the company can also see the web browsing history of employees’ mobile phones.” “Soft layoffs” are used to force workers to resign voluntarily to achieve “zero-cost” layoffs. "Public humiliation"... Recently, the Workers' Daily published a series of articles titled "In the Digital Age, There Should be Hard Constraints on "Soft Torts" in the Workplace," which reported on the current phenomenon of "soft torts" in the workplace such as some employers covertly monitoring employees' Internet access, forcing employees to resign without justifiable reasons, and causing unwarranted mental harm to employees. The core point of the "softness" of this type of behavior is that it is difficult to detect and obtain evidence, but it does not mean that it does not have infringement properties.
In "soft surveillance" in the workplace, some companies rely on intelligent systems to quietly collect data on employees' working status, facial expressions, operating behaviors and other data. The monitoring boundary even extends to private breaks and social interfaces. It is often packaged as "office compliance management", making it difficult for workers to detect traces of infringement in a timely manner. The existing laws make it clear that employers can carry out necessary monitoring of work scenarios with sufficient prior notification, but they must strictly follow the principles of legality, legitimacy, and necessity, and must not illegally obtain private information such as employees' private communications. "Secret monitoring" that does not clearly inform the scope of monitoring and the purpose of data through written forms such as employee handbooks and entry agreements is inherently illegal.
"Soft layoffs" are some employers who, in order to avoid statutory economic compensation, continue to exert pressure through malicious job changes and salary reductions, arbitrarily raising assessment standards, depriving work rights, etc., in order to force workers to resign voluntarily in disguise. It is a typical "zero-cost infringement" shortcut that directly damages workers' legitimate labor rights and interests.
"Soft violence" in the workplace is the most hidden of the three types of infringement. Insulting verbal abuse in public, long-term collective isolation, and cold-shouldered pressure without reason. These behaviors do not involve explicit physical conflicts or direct financial penalties, but they can easily cause the workers involved to fall into a state of anxiety, insomnia, and even depression. The harm is often resolved by saying "I didn't hit you, and I didn't deduct money from you." In reality, there are only a few cases where complete traces are left and the rights are successfully defended.
The common feature of the three types of "soft torts" is not that "the harm does not exist", but that it is difficult for workers to produce direct evidence to prove that they have been infringed upon when they are harmed. However, this type of behavior is by no means outside the law. Specifically, labor dispute cases in which unauthorized restoration of employees’ private chat records was found to be illegal, and “soft layoff” arbitration cases in which workers won based on attendance evidence have drawn clear judicial red lines—the company’s ownership of office equipment does not equal unlimited control over employees’ personal information; so-called "Business needs" cannot be used as an excuse for an employer to unilaterally change the core terms of the labor contract and implement "soft layoffs"; long-term verbal insults and mental isolation, even if there is no physical conflict, such "soft violence" may also constitute a violation of personality rights and require liability for mental damage compensation.
At present, there are still practical obstacles in safeguarding the rights of the above-mentioned "soft infringements" in the workplace: the coverage of existing labor security inspections is not fully adapted to this type of implicit infringement with blurred boundaries. Data in management tools and systems such as OA, DingTalk, and Enterprise WeChat controlled by the employer are easily tampered with and deleted, which further raises the threshold for workers to obtain evidence. To solve this dilemma, workers should not just think about "leaving evidence to prevent being cheated" in advance, nor rely solely on workers to defend their rights after the fact. Instead, the "hard constraints" should be moved forward. For example, relevant departments can further improve existing regulations and include "soft infringements" in the workplace within the scope of law enforcement supervision; Refining the identification standards for relevant infringements and clarifying the reasonable boundaries and due procedures for corporate surveillance, job transfers and salary reductions, performance appraisals, etc.; further optimizing the rules for assigning the burden of proof to provide more convenience and institutional basis for workers to safeguard their rights in accordance with the law, thereby promoting the extension of workers' rights and interests protection to prior prevention.
Enclosing the employer's employment management behavior in a clear "cage of rules" and allowing implicit infringements in the workplace to bear explicit illegal costs can better protect the legitimate rights and interests of both parties in the labor relationship, safeguard harmonious labor relations in the digital age, allow workers to work with peace of mind, and achieve a win-win situation between the protection of workers' rights and interests and the healthy development of enterprises.
Our newspaper’s commentator Zhang Weijie
