The German Federal Labor Court (Bundesarbeitsgericht – BAG) has ruled that when  an employer provides  Facebook users access to publish posts on the company’s Facebook page that relate to the behavior or performance of individual employees,  that process is subject to negotiation and  co-determination of the works council.

The ruling is of particular significance especially for companies with an existing works council in Germany that operate a Facebook page or a page on a similar social network with a commenting function for users.

Legal Background – Right of Co-determination

Sec. 87 para. 1 Works Constitution Act (Betriebsverfassungsgesetz – BetrVG) lists several matters in which works councils have a right of co-determination.

Under no. 6, the introduction and application of technical devices that are suitable for monitoring the conduct or performance of the employees triggers a co-determination right by the works council.

This means that the employer has to agree with the works council before implementing any technology that may potentially be used to monitor behavior or performance of its employees. According to settled case law, such technology particularly includes systems enabling the recording of internet or email use, video surveillance systems as well as computer software used to evaluate the employees’ performance.

Facts of the Case

In 2013, a company that operates blood donor services set up a Facebook page for the purpose of marketing across the group. The function allowing registered Facebook users to post on the company’s page was enabled.

Several users commented in their posts on the behavior of individual employees of the company. The employees’ names were known as they wear name badges at work.

The group works council claimed that the establishment and operation of the Facebook page should  be subject to its co-determination as the process of employee evaluation implicated the management of employees. Furthermore, it claimed that the co-determination right was triggered since Facebook users were given the possibility to publicly comment in their posts on the employees’ behavior or performance, thereby constituting monitoring of employees.

The Ruling

This argument was partly successful before the BAG.

The judges held that the employer’s decision to directly publish posts on its Facebook page is subject to co-determination. Where posts refer to the behavior or performance of employees, this constitutes a monitoring of the conduct or performance of the employees within the meaning of sec. 87 para. 1 no. 6 Works Constitution Act. Therefore, the configuration of this function is subject to co-determination of the works council.

Practical Implications

To be on the safe side, companies operating their own web pages or pages on social networks that provide a direct commenting function to their users should temporarily disable this function and first coordinate the configuration of this function with their works council.