Wolf Theiss

SOCIAL MEDIA – CHALLENGES IN LABOUR LAW

TRADE SECRETS, UNLAWFUL SICK LEAVE, OFFENDING COMMENTS – RISKS OF SOCIAL MEDIA AT THE WORKPLACE

Budapest, 3 March 2015 – With the spread of social media, a growing amount of content is becoming publicly accessible at workplaces, which remained confined to company corridor and elevator gossip in the past. Considering that such content may become public in a larger community, this trend may cause big headaches for employers as well. A careless post or mocking comments aimed at a superior may even cost the employee his/her job, but this greatly depends on whether the given company has any relevant internal policies to manage such cases. Thus, businesses and their employees are faced with a completely new challenge, where privacy and corporate interests are often in conflict with each other.

Numerous foreign and Hungarian cases surfaced in recent years involving employees sanctioned for comments, posts or images posted on social networking sites. The British airline Virgin Atlantic, for example, dismissed several employees in the past because they made insulting comments about the company`s passengers on Facebook. In 2009, Vodafone fired an online marketing employee for sending a joking Twitter message. The question arises in connection with the above cases: Where do we draw the line to limit employees’ freedom of expression, and to what extent are employees required to observe the legitimate business interests of their employers in their private lives?

To answer this question, we need to be aware that the responsibility of the employee does not cease when he/she goes home after work. During the term of employment, namely, i.e. not only during working time, the employee may not behave in a manner posing a risk to the legitimate business interests of the employer. It is important to emphasise that the employee commits a breach of his/her obligation by posing a risk to the business interests, thus the employee may not argue in his/her defence that the employer did not suffer actual damage.

The Labour Code explicitly allows the employer to monitor its employees within the scope of behaviour relating to employment. In view of the fact that relatively few court rulings have been handed down with respect to this area, the employer acts with circumspection if it sets out its main requirements in its internal policy, including provisions concerning the use of Internet, e-mail and social networking sites. In such policies it is also important to clarify whether the employer permits the private use of equipment it makes available, the prohibition of certain forms of behaviour, and the technical manner of performing monitoring.

It is important to emphasise that if the employer limits the privacy of the employee, as the limitation of the freedom of expression falls in this category, it needs to examine whether its business or other interests are in proportion to the limitation of the employee’s privacy, and whether such limitation is essential in the given case. The employee must be informed in advance of the method, conditions and expected duration of limitation, and the limitation may extend to the behaviour of the employee outside of the workplace, particularly if the employee fills an executive or another important position. The employer should therefore consider regulating the method of issuing representations on its behalf and to set out the obligation of prior consultation.

“We often hear that the Internet does not forget. This is a fundamental truth, which should be seriously accepted by all employees. The weight of this truth is particularly heavy on employees who casually shared their opinions and images with friends, whom they thought to make up a very limited group, yet wound up in trouble. This holds particularly true for social networking sites; the terms of use of such sites generally grant wide access to user data. There are many examples of legal infringements committed by employees on social networking sites. The most common example is offensive opinion about the employer, although trade secrets are also occasionally leaked. It is also not uncommon that the unlawfully claimed sick leave of an employee is discovered through posted photographs of the employee taken at a concert or abroad. In many cases employees do not understand that they are required to meet their obligations as employees in their private lives as well, particularly those relating to the confidentiality of information they consider to be evident, which constitute the trade secrets of the employer,” says Barnabás Buzási, associate of Faludi Wolf Theiss Attorneys at Law.

It is important to understand, however, that not only behaviour relating to employment, but the publication of photos depicting drunken persons on a night out or the harassment of co-workers with private chat messages may also entail employer’s sanctions, which, depending on the given circumstances, may extend from a verbal or written warning to dismissal with immediate effect. This is attributable to the fact that such types of behaviour may threaten the legitimate business interests of the employer or may threaten the good repute of the employer or the purpose of employment.

On the basis of the foregoing, the employee acts appropriately if he/she is thorough in acquiring information relating to monitoring rules in force at the workplace, applies strict privacy settings with respect to his/her user accounts, manages communication conducted with co-workers and other friends separately, avoids expressions of opinion relating to the employer, and refrains from the sharing of content explicitly of a personal nature.

For further information please contact

Barbara Fürchtegott
Barbara
Fürchtegott
Public Relations & Communications Manager
T. +43 1 51510 3808
Schubertring 6
1010 Vienna
Austria

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