The German Federal Labor Court (Bundesarbeitsgericht – BAG) will rule on February 25, 2020 whether an employer must observe co-determination rights of the works council when using a Twitter account.
What Is the Case About?
A company that operates several multiplex-cinemas in Germany set up a Twitter account as a contact point to its visitors and to provide the possibility of exchange of views. The company’s works council claimed to have co-determination rights on the establishment and operation of the Twitter account.
The works council argues that co-determination rights are triggered under sec 87 para. 1 no. 6 Works Constitution Act (Betriebsverfassungsgesetz – BetrVG) which gives the works council co-determination rights on the introduction and application of technical devices that are suitable for monitoring the employees’ conduct or performance. This provision aims to protect the employees’ privacy rights when it comes to the use of technology by the company that is suitable for monitoring employees.
The works council claims that a Twitter account is suitable for monitoring employees because the functions on Twitter where you can reply, retweet and mention user names, enable users to post on the employees’ performance and behavior and to provide critical comments.
The Regional Labor Court of Hamburg (Landesarbeitsgericht – LAG) agreed with the works council and ruled that the company shall refrain from continuing operating the Twitter account as long as the works council’s consent has not been obtained. It took the view that the works council’s co-determination rights are triggered because the company’s Twitter account offers the possibility to users to inform the company about the employees’ behavior. The employees’ right to privacy must be protected and employees shall be able to decide on their own what information shall be made public.
Precedent from the BAG 2016 Facebook Ruling?
Already in 2016, the Federal Labor Court ruled in a comparable case. The court held that where an employer provides Facebook users access to publish posts on the company’s Facebook page that relate to the employees’ behavior or performance, the configuration of this function is subject to the works council’s co-determination. Thus, the Federal Labor Court did not rule that the establishment of the company’s Facebook page is subject to works council co-determination rights, but the configuration of the function to enable user comments.
But What Is the Difference Between the 2016 Facebook Decision and the Pending Twitter Case?
The company takes the view that functionality on Twitter differs from other social media platforms. A Twitter user, so the company argues, can only tweet via its own Twitter account and the company cannot influence these actions as it cannot simply switch off access to publish comments or generally remove comments as is the case with a company’s Facebook page.
Ruling to Be Awaited
This argument did not convince the Regional Labor Court. The court pointed out that the different functions on Twitter do not change the fact that the employees’ privacy rights are still affected and the monitoring pressure is still present.
However, the Federal Labor Court’s decision cannot be predicted as its jurisdiction on sec 87 para. 1 no. 6 Works Constitution Act is quite inconsistent. In an earlier decision from 2013, the court indicated that this provision requires that the technical device itself must be designed for monitoring the employees’ conduct or performance. This decision was based on a situation where the employer used Google Maps to verify the employee’s expenses.
It could therefore be argued that this requirement is missing here as Twitter is generally not designed for monitoring employees plus, the company also does not ask Twitter users to evaluate its employees’ behavior. It also seems very unusual that employers would intend monitoring their employees through the company’s Twitter account. Companies rather run a Twitter account to have a public appearance and to be present for its customers in competition with other companies.
We will learn on February 25, 2019 whether the Federal Labor Court shares the Regional Labor Court’s view or will rather take the employer’s side and deny far going works council co-determination rights.
Impact for Employers
Either way, the decision will bring employers more clarity on how to operate their social media accounts when a works council is in place. If the works council’s co-determination rights are triggered, the works council could claim that the company must refrain from using the Twitter account until an agreement has been reached. This right could even be enforced with a preliminary injunction. If the works council and the company fail to reach an agreement, then the conciliation board (Einigungsstelle), a joint committee made up of employer and employee representatives, will have to decide.
Regardless of the forthcoming decision, in view of recent case law, it is generally advisable to try to reach an agreement with the works council before unilaterally introducing an employer-side social media tool.