German Employers’ Twitter Use Limited

 

By Dinah Wisenberg Brin April 15, 2019
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​German law may now limit employers' Twitter activities, thanks to a 2018 labor court ruling. Employers can no longer set up or operate Twitter accounts on their own. They must now get buy-in from worker representatives who sit on so-called works councils. The ruling applies to employers' own Twitter use rather than employees' behavior on the social media platform.

Twitter Use Restricted

In September 2018, a regional labor court in Hamburg ruled that German law dealing with technical devices applies to company Twitter accounts because the ability to view third-party comments posted on the social media platform allows employers to monitor employee behavior or performance.

If a company intends to implement or open a Twitter account, prior agreement with its works council is required, said Catharina Klumpp, an attorney with Bird & Bird in Düsseldorf, Germany. This prior agreement is referred to as co-determination.

Twitter accounts allow public feedback and activate co-determination rights because the comments from customers or others could allow employers to draw conclusions about employee performance or behavior, noted Gerlind Wisskirchen, labor employment law partner at CMS Hasche Sigle in Cologne, Germany.

The regional labor court ruled that co-determination rights apply to Twitter accounts because employers can't switch off public comments or replies, regardless of whether employers review the comments, Wisskirchen said.

In practice, works councils could seek wording stating that the company won't base employee disciplinary actions on information gathered from the account, Klumpp said.

If a company already uses Twitter and its works council has been OK with it, the council probably won't demand that the employer suspend the account, Klumpp noted. Companies that already tweet could either do nothing or go to their works councils, explain how they're using Twitter and seek consent, she said.

[SHRM members-only toolkit: Introduction to the Global Human Resources Discipline]

Facebook Ruling Distinguished

In a separate case, the country's federal labor court has ruled that an employer's Facebook account is subject to its works council's OK if the business allows visitors to post comments about employees' behavior or performance.

In this case, blood donors had posted negative remarks about a blood-donation business's employees on the company's Facebook page. The employer ultimately disabled public comments on its Facebook account.

But employers can't simply switch off critical comments that customers may post about their workers on Twitter.

On Twitter, anyone can reply to a company's tweet, post a tweet mentioning a company or employee, or retweet someone else's comment, with complaints or criticism potentially viewed by employers and others. As German lawyers have noted, negative comments from outsiders can stay on the site, and neither the employer nor employee can remove them.

Klumpp, whose firm represented the employers in the Facebook case, noted that many companies use Twitter to engage with potential customers, which "already allows third persons to monitor and make comments on what your employees are doing."

"I think the two cases show that co-determination rights go very far," Wisskirchen said.

The cinema chain involved in the Twitter case filed an appeal in October 2018. The appeals process usually takes six to 12 months, according to Wisskirchen.

Dinah Wisenberg Brin is a freelance journalist and writer based in Philadelphia.

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