After the sensational Facebook ruling rendered by the German Federal Labor Court (decision of 13 December 2016 – 1 ABR 7/15 - https://www.cmshs-bloggt.de/arbeitsrecht/betriebsrat-facebook-mitbestimmungsrecht-ueberwachungseinrichtung/), the discrepancy between rapid digitalization and restrictive case law with regard to section 87 I no. 6 German Works Constitution Act (BetrVG) has once again become the focus of attention in terms of labor law. The Hamburg Regional Labor Court (decision of 13 September 2018 – 2 TaBV 5/18) recently affirmed the question as to whether a Twitter account maintained by the employer constitutes a technical device that is intended to monitor the employees' performance and conduct.

Works council's codetermination right with regard to a Twitter account

The employer operates multiplex cinemas at 30 locations. A company-wide Twitter account is used to keep customers up to date about offers and events. Like other social media channels, the Twitter account is used both for the open exchange of opinions on films and the implementation of marketing measures. The Twitter page includes the functions "reply", "retweet" and "mention"; these features allow subscribers to forward messages, post their own messages in response to the cinema operator's tweets and reply to the author of a tweet. These functions cannot be deactivated by a user. Referring to the case law of the German Federal Labor Court regarding the "feedback function" on Facebook, the responsible central works council is asserting its codetermination right because the Twitter account could allow the employer to draw conclusions as to the conduct or performance of the employees who post messages. Therefore, the Twitter account is to be deactivated as a result of a cease-and-desist claim.

1. Instance: Hamburg Labor Court: No codetermination rights with regard to a Twitter account

The Hamburg Labor Court rejected a cease and desist claim in its ruling of 6 December 2017 (case no. 28 BV 6/17) because Twitter does not have any analysis features that allow the employer to draw conclusions about the conduct or performance of individual employees. Therefore, employees are not exposed to the permanent pressure that comes with being monitored. Moreover, there is a significant difference between Facebook and Twitter:

Twitter only allows its users to post their own messages on their own page but not on the page of the employer. However, the pages of private individuals are usually not within the employer's range of accessibility.

2. Instance: Hamburg Regional Labor Court: Employer's Twitter account subject to codetermination: Please disable the account!

Unfortunately, the Hamburg Regional Labor Court did not accept the Labor Court's line of argument:

It based its decision on the fact that the ruling rendered by the German Federal Labor Court in the Facebook case can be applied to Twitter and that, therefore, the works council has a codetermination right also with regard to the reply function. The sense and purpose of the codetermination right is to ensure that employees are exposed to the mental pressure exerted by technical monitoring devices only if the works council has equal codetermination rights. With regard to codetermination, it is irrelevant whether the employer actually intends to monitor and indeed monitors the employees' performance (already ruled by the German Federal Labor Court in 1986 (German Federal Labor Court, decision of 11 March 1986 - 1 ABR 12/84)).

By setting up a Twitter account the employer makes it possible to post messages in the first place. For the purpose of the provision, it is irrelevant where the posts are saved. The only decisive factor is that personal data relating to the employees' conduct that can be accessed at a later point in time are made accessible to third parties. In addition, such data cannot be deleted either by the employer or by the employee.

3. Instance: German Federal Labor Court: Case law so far shows: Nothing is impossible!

The Hamburg Regional Labor Court permitted an appeal owing to the fundamental significance of the case. At the end of their decision, the judges point out that there are fundamental differences between Twitter and Facebook. The question how to assess this difference is to be answered by the Federal Labor Court, however. The case law of the German Federal Labor Court does not show a consistent pattern in this regard. The German Federal Labor Court's ruling relating to google maps (decision of the German Federal Labor Court of 10 December 2013 – 1 ABR 43/12), for example, was based on the required criterion of immediacy, meaning the data have to be collected and processed by the technical device itself to be subject to codetermination rights. The reply function on Twitter does not fulfil this requirement; this, however, was not taken into account by the Hamburg Regional Labor Court.

The Heilbronn Labor Court (decision of 8 June 2017 - (https://www.cmshs-bloggt.de/arbeitsrecht/app-mit-kundenfeedbackfunktion-kein-mitbestimmungsrecht-des-betriebsrates/# ) addresses the criterion of immediacy and states that if the employer does not request users to post messages, codetermination rights are ruled out.

This ruling seems to provide a better background for the use of a Twitter account than the Facebook ruling since the feedback function on Facebook is an optional add-in while the reply function on Twitter cannot be deactivated. In addition, it seems unrealistic that employers would independently read private Twitter accounts of third parties in order to monitor the conduct or performance of their employees without having any reason to do so. Moreover, numerous employees working at the altogether 30 establishments can use these functions and it is, therefore, impossible for the employer to find out who wrote the respective post. With regard to Facebook, the German Federal Labor Court points out that no codetermination rights exist with regard to the use of a social media account even if there are several admin rights.

Need for reforms with regard to codetermination rights

The codetermination right under section 87 I no. 6 German Works Constitution Act and the essential case law of the German Federal Labor Court date back to a time when digitalization had not yet influenced the procedures and organization of businesses to such a great extent. Reforms and adjustments of the law and/or case law are urgently needed since almost all IT applications (80%) are subject to codetermination owing to the broad range of criteria for codetermination. Entire value chains can come to a standstill if the works council blocks the often time-consuming negotiations regarding an IT works council agreement; the result of this is a competitive disadvantage for German companies compared to international competitors. Thus, the codetermination procedure regularly blocks technical innovations and in this way the efficiency of companies in Germany.

Besides, in times in which lively discussions are held on Twitter, it seems unrealistic that a company would need the works council's approval to be allowed to tweet while politicians do it all the time. Perhaps this decision, which is difficult to communicate to non-lawyers, will lead the legislator or the German Federal Labor Court to consider the following reform:

  • The German Federal Labor Court should ("decidedly") return to the wording of section 87 I no. 6 German Works Constitution Act to the effect that the employer's intention to monitor employees is made a requirement.
  • With regard to case law, rulings should consistently be based on the criterion of immediacy ("the technical device itself has to monitor the employees").
  • The law could amend the criteria for codetermination to the effect that it is generally permitted to introduce IT applications, but the analysis of data remains prohibited until an agreement has been reached with the works council.