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In June 2017, the South Korea Ministry of Employment and Labor (MOEL) accommodated the National Human Rights Commission's (NHRC's) recommendation to improve the "Personal Information Protection Guidelines (Personnel and Labor Chapter)" regarding the electronic monitoring in places of business in order to protect the human rights of employees.
"Electronic monitoring in place of business" refers to an employer's installation and operation of electronic equipment for the purpose of monitoring the work status within its place of business or the activities of its employees. The specific types of electronic monitoring in place of business are as follows:
According to the NHRC's investigation, multiple infringements of employees' personal information were discovered, including the failure to undergo procedures for notifying and obtaining consent for collection of employees' personal information in the process of electronically monitoring the place of business, or the use of the electronic monitoring devices for purposes other than the original purpose of installation. Hence, in February 2017, the NHRC recommended the MOEL to instruct and monitor the employers so that they can strictly comply with the Personal Information Protection Act (PIPA) when collecting and using employees' personal information through the electronic monitoring system and to specifically stipulate the matters regarding the requirements and procedures for handling personal information for each major type of electronic monitoring in place of business and remedies in the event of infringement on rights in the existing guidelines.
With respect to the foregoing NHRC recommendation, the MOEL responded that "it will take affirmative measures to protect the employees' human rights from electronic monitoring in place of business." Moreover, the MOEL further notified the NHRC of its detailed plan to reflect (i) the compliance matters for employers regarding the installation and operation of electronic monitoring devices and the collection and use of personal information pursuant thereto, and (ii) the guidelines on remedial procedures in the event of infringement on employees' rights, in accordance with the relevant statutes.
The judiciary and the National Assembly are also guarding against the infringement on employees' human rights caused by electronic monitoring. On April 4, 2017, in the matter involving sanctions imposed on an employee that rejected a telecommunications company's instruction to install an application that collects personal information in his/her smartphone so that the employer can measure the quality of wireless communications, the Seongnam Branch of Suwon District Court affirmed that such employee has the right to demand its employer to respect his/her personal information control right. The court held that the employer's refusal to permit such employee to perform substitutable work and coercion of him/her to perform only the relevant work were unreasonable dispositions that infringed on such employee's personal information control right (Seongnam Branch of Suwon District Court, Decision No. 2015GaHap206504).
On July 19, 2017, the National Assembly's Environment and Labor Subcommittee proposed an amendment to the Labor Standards Act that prohibited the employer from monitoring the activities of employees with a CCTV installed in the place of business (sponsored by National Assemblyman Chang-Hyun Shin). This proposed amendment explicitly prohibited an employer from installing and operating CCTVs within the place of business in order to monitor the employees' works or work status and barred an employer from disadvantaging an employee in personnel matters based on the video information collected from CCTVs installed for the purpose of facility safety or fire prevention.
In light of the MOEL's acceptance of the NHRC's recommendation and the policy trends visible among government agencies, the regulations on electronic monitoring in place of business are likely to be further strengthened. Therefore, companies have to be well-informed of the PIPA and other relevant statutes and take preemptive measures so that they do not violate such laws.
Kwang-Wook Lee, Kenneth T. Kim and Keun Woo Lee are attorneys with Yoon & Yang in Seoul, South Korea. © 2017 Yoon & Yang. All rights reserved. Reposted with permission of Lexology.
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