Social networks are becoming an increasingly important part of employees' lives. They allow employees to keep in touch with friends and business contacts, to share information and to have fun.
While in principle these social networks are part of the private life of employees, they can also make an incursion into the professional sphere. The use of social networks and the employee's freedom of expression may be limited by the employer's overriding interests.
The employee is bound by a duty of confidentiality towards his or her employer. They are prohibited from revealing confidential company information, such as trade secrets, business secrets or information about the employer's customers.
An employee who publishes a photo of a prototype he/she is working on, an executive who reveals the company's financial situation on his/her LinkedIn profile or an employee who reveals problems in the manufacture of the company's products: such situations constitute a breach of the duty of confidentiality.
The employer must act upstream and establish a directive. In order to protect his/her interests, he/she must also react very quickly when an employee posts confidential information on social networks.
Criticism of the employer
In the relative intimacy of social networks, employees sometimes let themselves go and criticize their employer, publish derogatory comments about their superior or post pictures of questionable taste taken in the company or at a staff party. The employer must take action and respond promptly to such situations. In addition, some of these behaviors may constitute a criminal offense.
Company with an ideal goal
In principle, the employee benefits from the freedom of expression, enshrined in the Federal Constitution. In particular, they may publish their political or religious opinions. This freedom may be limited, in particular when the company has a political, associative or spiritual goal.
Inability to work
An employee presents a medical certificate and does not come to work because of the flu. The same evening, this employee publishes a photo of him/herself in a nightclub on social networks. Whether this constitutes a medical certificate of convenience or a behavior that could delay his/her recovery, the employer can take steps to manage such a situation.
The employer has a duty to respect and protect the personality of his/her employees. He or she must take measures to prevent and put an end to sexual harassment and mobbing situations in the workplace.
With the development of social networks, harassment situations are moving from the workplace to the Internet. However, the employer is bound by the same obligations to fight against sexual or psychological harassment.
It is imperative that they act upstream and issue a directive on the use of social networks and against cyber harassment situations. When informed, the employer must also take concrete measures if harassment occurs on social networks. Failure to do so may result in liability.
Faced with problems of confidentiality or harassment on social networks, the employer is tempted to set up an electronic surveillance system in order to avoid abuse. This surveillance may constitute an infringement of the employees' personality. It is subject to numerous conditions of validity.
In particular, the employer must issue a directive on the use of the Internet and social networks at work. Otherwise, monitoring will be unlawful and the possibilities to sanction the employee will be very limited.
It is common for employers to "google" a job candidate before even meeting him. Sometimes they are unpleasantly surprised to find photos of the candidate at a drunken party. The employer is likely to learn about personal data, such as the employee's family situation or his political, religious or associative activities.
What can they do with this information? Can he refuse to hire a candidate for these reasons?