Facebook or Twitter at Work – Is That Allowed?

Who doesn’t have a Facebook profile, Twitter account or Instagram page nowadays? The use of social media has continued to increase in the past few years. With the global emergence of the smartphone, the internet is accessible anywhere. Status updates are posted from the beach or the bar in the disco. Social media is also accessible at work. But is it allowed to be active on social media during work? And to what extent does an employer have a say on this?

TEXT DIRK ORMEL AND EMMA HARLAAR

The most common conflicts between employer and employee regarding the use of social media are related to the time spent on social media and the comments employees post. Quite a bit of case law has been published to determine what is tolerable and what is not. For instance, use of internet for private purposes for a short duration at work must be accepted by the employer. Therefore, it is not possible to prohibit private use of the internet entirely, but this does not mean that it is permitted without restriction.

With regard to posting messages, trade secrets may not be disclosed and the reputation of the employer may not be damaged. Offending your employer online is not allowed either. The latter is evidenced by the so-called Blokker case (Arnhem District Court March 19, 2012, “LJN” [National Case-Law Number] BV9483). In this case, an angry employee posted a rude and offensive message about his employer on Facebook. After a warning, he did it again, after which he was fired. The judge considered the dismissal justified.

To assess whether certain use of social media can be tolerated, a number of criteria have been developed in case law. When someone spends a lot of time on social media, it may be of importance, for instance, how long this person has been employed and whether his use of social media affects his performance. If an employee is just as productive as when he was not using social media or has already been employed for a long time, this may be a reason to give him another chance.

it is not possible to prohibit private use of the internet entirely, but this does not mean that it is permitted without restriction

In addition, it is important whether an employee has been given a warning for spending too much time on social media or posting inappropriate messages. An employee must first receive a warning before he can be fired because of inappropriate use of social media. The reason for this is that the warning clarifies what is tolerable and what is not. In addition, a warning gives the employee the opportunity to change his behavior and thus, keep his job.

Finally, it is advisable for employers to introduce a code of conduct or protocol for the use of internet at work. As the use of social media by employees cannot be prohibited, such a code of conduct gives the employer the opportunity to make clear to his employees what is and isn’t considered tolerable within his company. The employer can use this code to outline responsible use of social media. This allows conflicts concerning the use of social media to be prevented, and if they do occur, it is clear to the employee where he failed to comply.

it is advisable for employers to introduce a code of conduct or protocol for the use of internet at work

VanEps Kunneman VanDoorne is the leading Dutch Caribbean law firm. Founded in 1937, it has since developed its expertise to become the full service commercial law firm it is today. The firm comprises of approximately 35 attorneys and has offices in Curaçao, Aruba, Bonaire, St. Maarten and Amsterdam, which also serve St. Eustatius, Saba and Suriname.

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