Question 151. Upon detecting an Employee using media or social networks to conduct an inappropriate behaviour in accordance with the enterprise’s internal regulations, how can an Employer affirm such an Employee do so? Should the Employer investigate the case by themselves or recourse to the police in accordance with the law? If the Employer may investigate by themselves, to what extent will the investigation be conducted under the law?

Answer:

In principle, the means of employment provided to an Employee by any Employer, such as electronic equipment, computers, and laptops, will be considered as the enterprise’s assets. Therefore, if the Employer suspects that Employee is using media or social networks to have any behaviour which is inconsistent with the ILR, the Employer itself may verify the violation of the Employee through the checking the in/out-access status on the electronic equipment, computers and laptops used by the Employee. However, from practical experience, it is not easy to verify whether a particular account belongs to a particular Employee because, in the course of employment, many Employees may bring home these devices to work due to the nature of the jobs. In some cases, this may result in the fact that their relatives log on to these devices for using social networks or other persons impersonate Employees. Therefore, in most cases, the Employer cannot have a solid basis to determine if this is the Employee’s social networking account.

It should also be noted that if the tools and means of employment for the Employee, such as mobile phones and laptops, are not provided by the Employer but self-equipped by the Employee during the course of employment, the Employer will not have the right to access and inspect the Employee’s own equipment without his or her prior consent because such action may be regarded as an infringement upon the Employee’s privacy which is governed by the Constitution, the Civil Code and the Law on Cybersecurity. This means that, when the Employer takes self-verifying measures to prove the violation of any Employee, the Employer should be aware that Employee’ benefits are legally protected.

In addition to the aforesaid self-verifying measures, if the Employer has reasonable grounds to believe that the Employee’s use of media or social network is an indication of crime in relation to the criminal law, the Employer may request assistance from a competent police department on the basis of a criminal accusation or report to assist the police in investigating the case with their professional business in accordance with the criminal procedural law.