Increasing role of social media in labour law

The role of social media with respect to working relationships is ever-increasing. This raises various questions relative to the phase in which social media is used: job application (1), employment (2) or after termination of the employment (3). Below we review a few points of particular interest and we present a few pointers for employers regarding the use of social media.

1. The use of social media during the job application phase

It is quite normal for people seeking new employment to use internet search engines to familiarize themselves with the job market. But employers also frequently use the internet to screen potential employees. The pertinent question here is how do employers comply with the privacy laws when screening candidates via the internet and social media.

If an employer is able to prove that he has a ‘legitimate interest’ in carrying out such online investigation which prevails over the candidate’s right to privacy, then it is arguable that he should be allowed to carry out such investigation without requesting prior approval. On weighing up these interests, the employer should exercise good judgment and give particular consideration to the source of the information. The privacy rules for business networking sites such as LinkedIn will differ from those concerning a private network such as Hyves or Facebook. Moreover, employers should not automatically believe that what they have found on the internet is correct. It also cannot be ruled out that information belonging to the candidate’s namesake has been used by mistake.

Pointers for the employer in the job application phase

Given the privacy aspect – despite having a legitimate interest – we recommend that the candidate’s permission be requested before carrying out any online research (as is done when requesting references which, in principle, may only be requested with the candidate’s permission). Employers can, in job vacancies, also explain how social media will be used during the selection procedure and choose to discuss the results of their online investigation with the candidate (e.g. to avoid a namesake’s information from being used by mistake). If employers cooperate with external recruitment agencies, parties must agree in writing on what is allowed.

2. The use of social media during employment

The question which presents itself here is whether or not the use of social media is permissible during the employment phase. Employees are entitled to privacy, also at the workplace. For this reason it cannot be assumed that private conversations may be monitored, not even if these are carried out during working hours and on computers owned by the employer. This also applies to situations in which employees place messages on their public / unprotected Facebook profile. Unprotected pages do, however, simplify matters for employers: if the page is public and everyone is able to read the message then why not the employer? Should the employer then discover ‘misconduct’, it may, in principle, take action on the basis of such information. The key question is whether the employer has a legitimate interest in performing such check with due regard for the employee’s right to privacy.

Case law

An employee placing gross insults on his Facebook page about his manager was dismissed on the grounds of urgent cause. On discovery of the first message, the employee was confronted about his negative behavior but ignored the official warning. In yet another case the dismissal of an employee on the grounds of urgent cause for placing racist comments about his colleague on Facebook was not accepted. The court found the employee’s behaviour objectionable and consequently the dismissal was upheld but the employee was awarded a reasonable severance pay as no last warning had been given. These judgments clearly show that it is prudent for employers to first warn their employees before dismissing them.

Pointers for employers during the employment

It is wise to draft a social media code that lays down what is expected of employees when they use social media. This code should be restricted to rules about maintaining proper order within the company and should ensure that work does not suffer from the use of social media. This falls under the employer’s statutory authority to issue instructions. Rules on negative comments about the company, gossiping or complaints about colleagues or clients can therefore be laid down in the code. A total ban on the use of social media is too stringent.

If an employer wishes to lay down rules relating to monitoring the use of social media, which exceed the employer’s authority to issue instructions, these rules should be incorporated in the employment agreement. Should an employer decide to set rules regarding automatic supervision, the permission of the Works’ Council (if existent) is required.

3. The use of social media after termination of the employment agreement

Employers are also often confronted with statements made by their former employees via social media. These statements frequently involve possible infringements of the agreed non-solicitation clause.

With a non-solicitation clause the employer can agree with the employee that he may not approach any of the employer’s clients with a view to client acquisition or providing services. A non-solicitation clause must be agreed in writing and included in the employment agreement. Non-solicitation clauses are usually quite broad: employees must refrain from ‘all contact, direct or indirect’ with the employer’s clients. A specific client list is sometimes included in the agreement.

Case law does not reveal any clear line regarding an employee’s breach of an agreed non-solicitation clause caused by statements he placed on social media. The courts do, however, distinguish between private-oriented and business-oriented social networks and courts consider the type of communication used when assessing the case. Further case law must clarify exactly where the boundaries lie. What can be deemed a breach of a non-solicitation clause depends on which social network is used.

LinkedIn

– To ‘link-up’ on Linkedin an invitation must be sent and accepted. This type of action could qualify as making contact which violates the non-solicitation clause;

– If the name of the business contact is included in the non-solicitation clause, it is quite likely that this will be deemed a violation;

– Another important aspect is whether the former employee and business contact were ‘linked’ prior to the new employer employing the employee. This could be reason enough for the court to find that the non-solicitation clause was not violated;

– Additionally, whether the employer encourages or even demands that employees ‘link-up’  with business or even private contacts to consequently use the employee’s network for business purposes, could be important. This could give rise to the question: to what extent did employer facilitate the employee’s relationship and continued relationship with its business contacts after the termination of the employment agreement?

Facebook

Facebook is used mostly to post messages to informal and friendly contacts.

– It seems that mere communication via Facebook with ‘linked’ business contacts will not automatically lead to a breach of the non-solicitation clause;

– But, if the posts on Facebook are meant for client acquisition this could qualify as a breach of the non-solicitation clause. After all, this is more than a mere announcement made to informal and friendly contacts. It is important that the employer immediately makes a ‘print screen’ of all business-contact-sensitive announcements made by the former employee.

Twitter

On Twitter no agreement is required to follow or be followed while an invitation must be sent and accepted on Facebook and LinkediIn.

– Case law states that Twitter can be deemed a modern form of advertising. Business (general) tweets, in principle, do not lead to violation of the non-solicitation clause;

– This could, however, work out differently if the tweet is specifically addressed to a specific follower/business contact.

Pointers for the employer after termination of the employment

On agreeing the non-solicitation clause with the employee, rules may be laid down regarding social media.  For instance, it is advisable that the non-solicitation clause also explicitly states that ‘approaching/contracting contacts via Facebook, LinkedIn, Twitter and other social media’ could constitute a breach of the non-solicitation clause.

Employers may consider including a separate ‘clean-up clause’ in the employment agreement (or the settlement agreement for termination of the employment agreement). Employer and employee then agree, for example, on employee’s last working day to go through the LinkedIn account together and to delete ‘linked’ contacts. Doubtful cases can then be discussed in mutual consultation, which is far more effective than getting bogged down in legal proceedings.

For more information, please contact Martine Hoogendoorn.