Legal Aspects of Social Media &Employer Branding – Feb 8, 2013

avv. Caterina Rucci

caterina.rucci@twobirds.com

Companies and Social Media

To encourage and support the appropriate use of social media in both business and private communication,

companies should regularly revise their specificPOLICIES

to bring them up-to-date.

Social Media are an increasingly important form of communication

in today’s business.

Companies and Social Media

The objective is to achieve a

coordinated, planned, and consistent

approach to the business use of Social Media.

Companies should use Social Media as a mean to develop their business and

strengthen their brand.

ResponsibilityReputation

ConfidentialityIdentity

Your PrivacyPrivacy of others Third party rights

RespectReasonable use

Principled and ethical approach

Some principles to be used as a general guidance:

Companies and Social Media

ADDITIONAL GUIDELINES ON USE OF A SPECIFIC SOCIAL MEDIA

Personal use of Social Media

It may not be easy to differentiate between the personal use of Social Medias and the business-related use of the same,

THIS DISTINCTION IS ESSENTIAL!

However, also personal use of Social Media

can have business consequences.

Employers should in principle not interfere with the personal use of Social Media by their employees, since this is protected under Sect. 8

of Workers Statute

Social Media: disciplinary aspects

In these cases a disciplinary action might be started and - once thejustifications provided and the seriousness of the violation have beenconsidered - a proportionate sanction might be applied, such as

• a so called “conservative” sanction, such as a fine, or a suspension,• or, disciplinary DISMISSAL.

Abuse and incorrect use of Social Media can cause theviolation of main duties in an employment relationship:

• the duty of diligence;

• the duty of loyalty towards the employer; and

• the duty of confidentiality.

the abuse of Social Media during working hours,

the use of Social Media outside the working hours, if aviolation of the duties connected to the employment

relationship arises from that use.

In a disciplinary perspective, the following aspects might be relevant:

INFACT

The employee is subject to his duties of loyalty towards the employerand confidentiality also outside the working hours.

Social Media: disciplinary aspects

Sect. 8, law 300/1970

It is prohibited to the employer, to investigate, even through a third party… the political opinions, the religious belief or

the association to trade unions as well as any other fact irrelevant in order to assess the employees' professional

qualifications both for the purpose of employing someone as well as during the course of employment.

We should also consider a very relevant limitto the employer’s control of the private use

of Social Media,

The violation of this provision may have as a consequence the application of a criminal sanction.

Social Media: disciplinary aspects

The use of Social Mediaduring working hours

In order to be able to react on a disciplinary basis towards the access and the use ofSocial Media during working hours companies should adopt specific policies relatedto:

• the limits to the use of internet and of Social Media during working hours;

• specific obligations of each employee (i.e. confidentiality and safety of ITsystems); and

• sanctions with respect to each violation.

The use of Social Media during working hours might therefore justify the adoptionof disciplinary sanctions when it results in a violation of the duties of loyaltytowards the employer and confidentiality:

• performance of non-working activity during working hours;

• illegitimate use of company goods for personal purposes.

Usually the use of Social Media during working hours might entail theapplication of conservative sanctions, while dismissal will be applicableonly in case of a serious damage for the employer and if the prohibitedbehavior was repeated.

Disciplinary consequences of the use of Social Mediaduring working hours will depend on:

• the duration of the access;

• if the access is systematic;

• hypothetical damages or harm to the IT system safety.

The use of Social Media during working hours

Loyalty and right to criticize

Publication on Social Media of negative comments, personal evaluation and critics towards the employer, the colleagues, or the customers, when suitable to harm the employer’s reputation can be

sanctioned.

• employee fired after posting on Facebook “the managing director is anidiot”; (Italy)

• employee fired after criticizing on Facebook the clients of the restaurant sheworked in, mentioning the restaurant’s name and the miserly tip… (USA)

• personnel of a US Airline fired for criticizing security measures for the planes• fired for defining his boss as “of uncertain mother” on Facebook;• employee fired after creating on Facebook the group “All the losers

working for…” in which employees posted negative comments on theiremployer.

“FIRED BY FACEBOOK”

Right to criticize

FREEDOM OF THOUGHTS

Section 21 of the Italian Constitution

“all the people are granted with the right to freely express their opinion verbally, in writing and with all other means of communication”

FREEDOM OF OPINION

Section 1 of the Workers’ Statute

“employees are granted with the right to freely express their opinion, within the limits of the Constitution and applicable laws”

Comments, personal evaluations and critics towards the employer might be lawful provided they do not trespass the limits of the

right to criticize.

Limits to the right to criticize

The right to criticize shall be balanced with:

• the right of the employer to its reputation, honor and dignity;

• the respect of the obligation of loyalty, correctness and good faith within the employment relationship.

Trade Unions-representatives’ opinions and/or comments expressed by Trade Unions’ members shall be considered in a less severe way

due to the special protection allowed to trade unions activityin our country, based on sect. 39 of the Constitution

Limits to the right to criticize

they are expressed with proper and polite words.

Out of the lawful and legitimate right to criticize:

• insults or other offensive expressions, with reference to common sense;

• artificial dramatization, the use of exaggerate allegations, the use of disproportioned and suggestive combinations.

All expressions which might entail defamation (reato di diffamazione) are generally also unlawful for employment purposes

Comments, personal evaluation and critics towards the employer are lawful provided that:

Limits to the right to criticize

Other criteria to be considered in the evaluation of the right to criticize:

• the position of the employee within the company: publishing negativecomments by an employee with a high degree of responsibility within thecompany is always evaluated more strictly in light of the widest harmfulpower of the relevant criticism;

• suitability of the comments to harm the reputation and the image of thecompany, also on an economic point of view;

• the context and the specific circumstances of the case;

• the area of diffusion of the relevant comments: the higher the number ofpotential addressee, the more prudent the criticism needs to be.

The right to criticize using Social Media is shall be considered under a more severe perspective, due to the much wider diffusion these

opinions have, in comparison to opinions expressed within the place of work.

The right to criticize outside the limits of applicable laws

“if the employee exercises his/her right to criticize overcoming the limits of objective truth, and harming the honor and the dignity of the image of the employer, this may affect the trust on which every employment relationship is based, as per section 2105 of the Italian Civil Code, and

might entail a juste cause for dismissal”

Supreme Court 17 September 2009, n. 20048

Failure to comply with the limits set forth by applicable laws might entail, in the most serious cases, a “juste cause” of dismissal.

Restrictive covenants: non-compete

Non competition - Section 2125 c.c.

“an agreement by which the employee undertakes NOT to work for competitors/in competing activities for a

certain time after end of employment”

If you are under a non- compete…and are probably violating it, don’t put the name of your current employer on Linked-in….

The information the employee posts, can be used, together with other elements, to support an action for breach of contract…

…and employers do check Linked-in!

Use of Social Media and violation of confidentiality

Confidential information are:

• all information known by the employee in occasion of the employment relationship such as all information related to processes of productions and technical characteristics of the products, letters, reports of administrative authorities, correspondence, relationships with clients and suppliers, public bodies and unions;

• all other confidential information the employee is requested to keep confidential, for example under specific policies of the employer.

Loyalty towards the employer - Section 2105 c.c.“the employee is prevented from disclosing any information related to

the organization of work and to the methods of production of the employer, or to use them on the purpose to harm the employer”

Use of Social Media and violation of confidentiality

Disclosure, by means of Social Media, of confidential information can bechallenged to the employee and the relevant disciplinary sanction can beapplied.

The mere misconduct is sufficient, in order to support a disciplinary challenge,when it results in a disclosure of confidential information. Neither fraud norintention are required.

The draftsman of a company was fired due to his posts of photos on Facebook, onthe background of which some drawings covered by industrial secret appeared.

Since those pictures could be seen not only by “friends” but also by “friends offriends” the public of viewer was undeterrmined and therefore the disclosure washarmful for the company.

Use of Social Mediaduring sickness leaves

• Absence in case of sickness is lawful subject toe diseasepreventing or making it really difficult for the employee toperform his activity; a mere head-ache will not justify yourabsence…

• During sickness leaves the employee should best not perform anyactivity inconsistent with the diseases, or of a kind whichwould delay the restart of the working activity

• DON’T POST your pictures while you are on sicknessleave…

General principles

Use of Social Mediaduring sickness leaves

The use of Social Media is not,

in principle, inconsistent with sickness.

however…the use of Social Media during sickness might disclose circumstances which are inconsistent with the state of sicknessSuch circumstances might be used to challenge the sickness to the

employee.

The evaluation needs to be based on a case-by-case basis.

Use of Social Mediaduring sickness leaves

Cases

Employee who was absent due to an alleged headache, which prevented her from working with the PC, was dismissed because she

used Facebook at home.

In this case the prolonged use of Facebook is inconsistent with the alleged disease and the use of a computer is in any case suitable to delay the recovery

(considering the headache was due to the prolonged use of a computer).

Employee dismissed after posting on Facebook pictures lying at the beach while absent for sickness.

All images and information which might reveal the absence of the alleged sickness or inability to work can be used by the employer to challenge the actual sickness.

Use of Social Media after the termination of employment

Information disclosed by the former employee about the newemployment (such as the Linked-in profile) can be used in order toprove:

• the possible violation of a non-competition covenant (i.e. indicationof contacts with competing enterprises);

• the so-called “aliunde perceptum”: the indemnity due for unlawfuldismissal might be reduced by the Court of the amounts received from anew (undeclared) employer (if this

Social Media and Employment Law: the things you need to know

1. Posts are not private: if you blog, or have a Facebook,

MySpace, LinkedIn, Plaxo, Twitter or other Social networking account,assume that your employer or a potential employer may see whatyou’ve written …

2. In general: If you don’t want the boss to see it, don’t post it…

3. Business Events: if you attend an office party, seminar or

convention, be careful what photos you post or allow others to postonline…

4. Insulting the Boss or Company: before you write anything,

assume your boss/company will see it and word it carefully.

Thank you

caterina.rucci@twobirds.com

Bird & Bird LLP is a limited liability partnership, registered in England and Wales with registered number 0C340318 and is authorised and regulated by the Solicitors Regulation Authority. Its registered office and principal place of business is at 15 Fetter Lane, London EC4A 1JP. Bird & Bird is an international legal practice comprising Bird & Bird LLP and its affiliated and associated businesses and has offices in the locations listed on our web site: twobirds.com. The word “partner” is used to refer to a member of Bird & Bird LLP or an employee or consultant, or to a partner, member, director, employee or consultant in any of its

affiliated and associated businesses, who is a lawyer with equivalent standing and qualifications. A list of members of Bird & Bird LLP, and of any non-members who are designated as partners and of their respective professional qualifications, is open to inspection at the above address.

www.twobirds.com