Works councils in Germany have extensive "co-determination" rights—i.e., the right to participate in company management. Works councils serve as the representative body for employees in German workplaces. Once there are five or more employees in a workplace, they have the right to initiate works council elections. As a recent decision of the Federal Labor Court shows, the councils' co-determination rights can extend to the employer’s own use of social media.
Works council co-determination rights can be triggered under the following circumstances:
- Co-determination rights must be honored when the employer seeks to implement rules on how employees should behave at work (e.g., through non-smoking policies, ethics and compliance rules, or whistleblowing policies).
- Works councils have the right to co-determine if the employer wants to introduce technical facilities or devices that can be used to monitor behavior or performance of individual employees (e.g., camera surveillance, telephone, email program, business software). This right applies regardless of whether the employer intends to use the technical facilities to monitor employees. The mere possibility that the employer could use the device to make employment decisions based on the employees’ behavior or performance would be sufficient to trigger co-determination rights.
In the social media context, it is necessary to differentiate between an employer's intent to establish a rule governing the employees’ use of social media and one governing its own use.
Co-Determination Rights Regarding Social Media Guidelines
Many employers seek to create social media guidelines to promote an employee's responsible use of social media. But employers in Germany generally cannot create binding directives aimed at employees’ personal/non-business use of social media. If the employer provides recommendations only, works council co-determination will not apply.
As a general rule, co-determination rights exist only in connection with rules for employees’ use of social media in a business context, and only with regard to employees who do not work with social media as their main contractual duty (e.g., they are not the Social Media Manager of the company).
What About the Setup of the Employer's Own Facebook or Twitter Account?
One would assume that a company’s Facebook (or Twitter, LinkedIn, etc.) account does not qualify as a "technical facility that can be used to monitor behavior or performance of individual employees," the implementation of which, as explained above, would trigger works council co-determination. But a recent decision of the German Federal Labor Court shows that co-determination rights could be triggered, depending on the technical possibilities of the site the employer is using.
The employer in question operates blood donation services. In 2013, the employer opened a company Facebook account and decided to give other Facebook users the ability to post comments on a virtual pin-board. Some of the blood donors posted critical remarks about individual employees working for the company. In response, the company’s works council demanded that the employer switch off its Facebook page.
While the Regional labor court of Düsseldorf had ruled in 2015 that a Facebook account is not a "technical facility of the employer" that would warrant co-determination, the German Federal labor court took a different view and ruled:
If the employer publishes visitor postings on his Facebook page and these postings refer to the behavior or performance of individual employees, the configuration of this technical function is subject to works council co-determination.
The decision raises important questions. Could the works council demand that the employer switch off the company's client relationship management system (CRMS) and only switch it on again after agreeing on the use of the CRMS with the works council? Is it still possible to publish a company email address on the company web page, which customers can use to address their questions and to give feedback, without previously reaching an agreement on the use of this email address with the works council? These questions remain unanswered — at least for now.
Since the co-determination procedure with a litigious works council can take several months in Germany, employers may have to start thinking about an alternative means for managing their customer relationships.