Working in the Netherlands

Maximiliane Kempermann

When it comes to the use of social media, works council co-determination can be triggered mainly under two aspects:

• Co-determination rights have to be observed when the employer wants to implement rules on how employees should behave at work (e.g. non-smoking policies, ethic and compliance rules or whistleblowing policies).
• Works councils have the right to co-determine if the employer wants to introduce »technical facilities« that can be used to monitor behavior or performance of individual employees (e.g. camera surveillance, telephone, email program, business software). This applies regardless of whether or not the employer really intends to monitor employees. The mere possibility for the employer to use the technical facility to draw conclusions on the employees’ behavior or performance would be sufficient to trigger co-determination.

In the context of social media, we need to differentiate between a situation in which the employer wants to establish rules for the employees’ use of social media and a situation in which the employer himself uses social media.

Has the works council co-determination rights with regard to social media guidelines?

Today, many employers decide to set rules for employees to safeguard a responsible use of social media by establishing social media guidelines. But employers generally cannot give binding directions aimed at the employees’ private use of social media. Where the employer can only give recommendations, there is also no room for works council co-determination.

Therefore, as a general rule, co-determination rights only exist in connection with rules for the 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. 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 …) account does not qualify as »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 this actually depends on the technical possibilities of the site the employer is using. On 13 December 2016, the German Federal Labor Court had to make a decision on the following case:

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 technical possibility to post comments on a virtual pin-board. Some of the blood donors posted critical remarks on individual employees working for the company. As a reaction to this, the company’s works council demanded that the employer should switch off his Facebook page.

While the Regional labor court of Düsseldorf as the court of second instance had ruled in 2015, that a Facebook account is not a »technical facility of the employer« that would need co-determination, the German Federal labor court took a different view and ruled as follows:

»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, e.g.:

Could the works council demand from the employer to switch off the company‘s client relationship system (CRS) and only switch it on again after having concluded an agreement on the use of the CRS 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?

The written opinion of the Federal Labor Court’s decision is not yet published. But since the co-determination procedure with a litigious works council can take several months in Germany, employers may have to start thinking about a fall-back scenario for their customer relationship management.

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• European Labour Law
• Labour Law in Germany
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