The impact of the use of social media in the workplace has regularly given rise to controversies and debates as how this subject is to be handled by a company’s management. The current state of employment law is still not entirely settled in this respect. It is however possible to provide some guidance on the most common issues arising from such use with regard to employment law (data protection regulations will not be considered in this article).
Access and control of social media in the workplace
As a general rule, employees are allowed to access the internet for non-professional purposes in the workplace, whether using company equipment or personal equipment. However, such use must be both reasonable and licit and should not prevent the employees from properly carrying out their duties. As a result, case law has accepted dismissals based on the fact that an employee spent too much time on a social media website during his working hours.
In this regard, and in order to limit the potential risks that may result from the employees’ use of social media (loss of productivity, violation of professional secrecy and confidentiality, e-reputation, etc.), employment law admits that the employer may scrutinise and limit employees’ access to the internet and social media via the company’s equipment through an information technology policy setting out the employees’ rights and obligations relating to the use of social media in the workplace.
Such information technology policy is licit under employment law provided that, prior to its implementation, the employer informs its employees and carries out the information and consultation process with the employees’ representatives. In addition, in order for the employer to be able to sanction the employees in case of breach of the policy, the policy must comply with the implementation requirements of internal regulations (in particular, the scrutiny of the labor inspector) as it is considered as laying down general and permanent disciplinary rules. Also, specific procedures must be followed with the French data protection authority (“CNIL”). Last but not least, the information and technology policy must comply with general employment rules providing that any limitations on employees’ rights and freedoms must be justified by the nature of the task to be performed and proportionate to the purpose sought.
Rules of evidence in accessing the employee’s information
In principle, French case law considers that connection to the internet during working hours and through the professional computer of the employee is deemed to be for professional reasons and thus entitles the employer to freely access them without informing the employee.
The matter is quite different when it comes to determining whether or not the employer may invoke content posted by the employee on a social media. Indeed, employment law strictly regulates the means by which the employer can gather evidence for justifying a disciplinary measure against an employee. Besides, the employee’s right to privacy and private correspondence are protected against any violation by criminal law (both offences punishable by an imprisonment of up to one year and a fine of up to 45,000€).
In a nutshell, the employer is only allowed to invoke evidence if such evidence has been collected through fair and loyal means, i.e. the employee has been informed of such collection or is inherently aware of the possibility of access given the particular technology (connection history, etc.). Thus, the employer is generally allowed to invoke elements of evidence provided by one of the recipients of the employee’s posting or “friends”. It is also admitted that the employer may invoke content accessible to the public (Twitter for example, or Facebook in some cases). In last resort, the employer can always seek a judicial injunction so as to access the employee’s account provided it is justified by legitimate and objective reasons and necessary to the safeguarding of its rights.
Abuse of the employee’s freedom of speech
Finally, the employer is authorized to discipline and even dismiss an employee if he/she does not comply with the information technology policy and more generally if he/she uses social media in an unreasonable fashion (too many connections at the detriment of his/her duties).
In addition, the employer is also entitled to take measures based on the content an employee has posted on social media, even outside his/her working hours and place. Indeed, while French law generally prohibits disciplinary measures based on facts occurring in the sphere of the employee’s private life, such measures are permitted provided that the facts complained of regarding the employee are linked to the professional activities or constitute a violation of the employee’s contractual obligations (loyalty, confidentiality, etc.). Moreover, although employees benefit from freedom of speech both in the workplace and in their private lives, they cannot abuse it by making excessive, insulting or defamatory statements and more generally violate their contractual obligations.