Where do people get all that time they spend on social media from? Employers don’t want to hear the answer: They mostly play games during working hours. But is that legal? What threatens employees and what companies can do about it.
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Anyone who speaks to lawyers scratches their heads at why many employers tacitly allow this. Because the legal situation is clear: “He does not have to point out separately that employees should not use social media privately during working hours. Employees have no right to private use of the internet during working hours,” says Julia Förster, a lawyer at Freshfields law firm who specializes, among other things, in employment law issues related to compliance and data protection issues. Only the private use of social media during breaks using private devices is unproblematic.
The employee cannot rely on their employer to tolerate private Internet use during working hours unless they have expressly permitted it. And even then, the daddling must not last too long: “If the employee uses the internet privately during working hours, he violates his contractual obligation to perform the work owed,” says Julia Förster. The breach of duty weighs all the more heavily, the more the employee neglects his work duties in terms of time and content when using the Internet privately. “The behavior of the employee may also be criminally relevant if he knowingly and deliberately deceives that he is doing his job,” said the lawyer.
Now, many may appeal to a certain “common law.” However, it is disputed whether the employee’s right to private internet use arises from the employer’s toleration if the employer accepts such behavior for years without comment. “In some cases, the existence of a so-called operational exercise is affirmed,” explains Julia Förster. This means that the employee can assume that the attitude of the company will not change suddenly. So if the employer tolerates the use of social media for years, he cannot discipline his people for it from one day to the next.
In companies, there are often no precise regulations as to whether private use of the Internet, including social media, is permitted or not. However, if it has been expressly forbidden – and this is sometimes in the small print of the employment contract or in the company agreement – then employees can in no way invoke “common law”. If the employer has allowed his employees to use equipment, i.e. computers, tablets or mobile phones, privately during working hours, “it is strongly advisable to set the limits for private use and to expressly point out if certain social media portals are not accessible during working hours should be visited,” advises Thomas Grannetzny, also a lawyer at Freshfields.
Even without an explicit time limit on the part of the employer, excessive use is not permitted. For example, there are judgments where extraordinary termination was legal after an employee used a laptop and the like for private purposes for 40 hours in 30 days. For comparison: This roughly corresponds to the average time that every German spends on social media during working hours. If the employer quits because of this, the burden of proof lies with him. However, many posts contain the date and time, which means that employees can be quickly transferred. In order to avoid being fired, they would have to prove “that private use during working hours was permitted or, if necessary, tolerated,” says Granetzny.
The question arises: how can an employer ensure that people pull together before a dispute arises? The lawyer advises: “From our point of view, it is advisable to ban private use during working hours for various reasons.” It is easy to guess what the employees would think of this. If companies then want to allow the use of social media before they lose their employees in times of a shortage of skilled workers, “we recommend employers to set up clear and proportionate principles for private internet use,” advises Granetzny. This should also address the use of social media and provide for possible control measures with regard to the use of company devices, but not private devices.
Because the concrete control options the employer has depends on whether private use is permitted or not. In the case of a ban on private use and concrete indications of inadmissible Internet use, “the employer is advised to record these suspicions in detail”. If there is a works council, the conditions under which control can take place are usually the subject of a works agreement. If control measures are required, such as checking the employee’s browser history, it is advisable to involve the works council, the data protection officer and often the employee as well. On the company laptop or mobile phone, the employer can, for example, use filter programs or access blocks to exclude the use of certain websites such as popular social media platforms.
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