Internet use is becoming more private

How Much Internet Use is Allowed - Facebook & Twitter at Work

Internet use in the workplace not only affects business matters, but also regularly uses the Internet for social networks such as Facebook, Twitter, XING, Instagram and other private interests such as e-mail, Wikipedia or travel portals.

Employees and employers alike are wondering whether Internet use may be monitored and what consequences under labor law are threatened. You can find out when there is a risk of a warning or even termination due to private Internet use in the new blog on labor law from the law firm AHS Rechtsanwälte Köln & Bonn.

Basic information on using the Internet at work:

The uncontrolled use of the Internet in the workplace costs employers a lot of money every year in the form of lost and unused working time. Over the past few years, the case law of the labor courts has increasingly clarified the handling of labor law in connection with Internet use at work and the use of social networks such as Facebook, Twitter, XING, Instagram, Tumblr, Google+ or Myspace.

In principle, private surfing at work is not permitted, as this naturally leads to a breach of the contractual obligations if the employee writes private emails instead of working during his working hours.

A distinction must also be made here as to whether the Internet is used via the company computer or the employee's private smartphone or tablet and which arrangements have been made with the employer.

Often there is no clear regulation in companies as to whether and to what extent employees are allowed to use the Internet for private matters.

Permission for private internet use:

A written agreement on internet use is recommended in both small, medium and large companies. It should be regulated to what extent the Internet may be used for business or private purposes. This can be done via the employment contract or a service agreement, but it can also be ordered unilaterally by the employer via his authority.

This agreement should cover both the time and the content of the Internet use. For example, it should be regulated whether the employee can also use the company access for private matters during his breaks and which pages are blocked or released by so-called positive lists.

If there is no clear and verifiable regulation, it is possible that a right to use the Internet has developed from operational practice. This is assumed if employees are allowed to surf the Internet privately over a longer period of time, at least six months, with the (even tacit) tolerance of the employer or a person with a managerial function in the company. However, employees should be very careful with the institute of in-company exercise, as the requirements are very individual.

In individual cases, it must always be taken into account to what extent the Internet was used for private matters.

It is also decisive whether only the social networks such as Facebook, Twitter etc. were visited or whether offensive or even criminally relevant pages were called up or even illegal activities were carried out.

For this reason, it must be decided individually for each issue whether the employee has violated his duties or exceeded his or her freedom.

Private internet use with a smartphone or tablet:

Private internet use with smartphones or tablets has increasingly found its way into working life due to technical developments. It is difficult for the employer to understand which pages have been accessed and the amount of time the employee has surfed the Internet.

However, private surfing is unproblematic as a violation of the contractual obligations, because the employee does not perform any work while using the Internet privately.

Problems are therefore cases in which employees interact very frequently with their mobile phones at very short intervals to call up information pages, surf in social networks (Facebook, Twitter, Instagram, XING, etc.) and communicate with their family and friends via messenger. Over an entire working day, the employee's mental absence can add up to an hour or more.

If the employer documents this misconduct, he can issue a warning and, in the event of repetition, even give notice of termination.

Private internet use with business access and company computer:

If the employee uses the Internet with the company access, a distinction must first be made between whether the Internet is only used for private purposes or whether it is also used for business purposes. All page views and e-mails that are related to work are unproblematic. This also includes e-mails which the employee sends privately but which are motivated by work; For example, the e-mail to the life partner that overtime is being worked at short notice.

Cases in which colleagues communicate with one another are very difficult to decide. In this case, similar to the "corridor conversation among colleagues", the boundary between (permitted) business and (fundamentally prohibited) private communication is often blurred. In general, of course, it is also in the employer's interest that the employees get along well outside of work and that there is a pleasant working atmosphere. A sharp separation is therefore difficult to draw.

It is therefore advisable to specify the aspect of private electronic communication between employees in an internet usage agreement. For example, many employers prohibit the internal sending of pictures and videos that are not related to work.

In addition, it must be noted that all actions on the Internet that are carried out from the employer's business access can initially also be traced back to the employer. This means that the employer may even be liable if the culprit is not identified and the employer cannot exonerate himself. If the culprit can be identified, the employee is usually liable for any damage suffered by the employer due to unauthorized internet use.

In individual cases, the employer can even monitor internet usage to a limited extent and track it later.

Internet usage monitoring:

Whether or not the employer can randomly check Internet use depends first of all on whether private Internet use has been permitted in advance.

A Unauthorized private internet use represents an abuse of working hours and may, under certain circumstances, be randomly checked and documented if there are concrete indications of abuse. The consent of the works council is required for this, if one exists, see § 87 I No. 6 BetrVG. If this is the case, individual emails can be specifically checked to see whether they are of a private or business nature.

However, if the employer has generally allowed Internet use, private surfing by the employee is subject to telecommunications secrecy (Section 88 TKG) and may therefore not be monitored unless there are indications of violations of labor law.

Systematic monitoring is strictly forbidden as this violates the employee's privacy. Employers should definitely seek legal advice before carrying out spot checks, as employees' personal rights are of great value in court.

Warning & termination due to internet use at work:

As already shown, the unauthorized or excessive private Internet use represents a violation of the contractual obligations. The employee does not work during private surfing, is distracted and risks work mistakes.

One-off violations usually only lead to a contractual breach of ancillary obligations. However, if the employee surfs the Internet for private purposes for a considerable period of his working hours and does not perform any work, then he is violating his main duty from the employment relationship.

If he surfs on Facebook or Twitter with the company computer or installs other programs on the computer, he risks a virus attack on the work computer. In addition, the employee risks damaging the employer's reputation if illegal pages are accessed from the workplace.

Private internet use at work can therefore have extensive legal consequences. This can range from claims for damages to labor law measures such as a warning to extraordinary termination.

As a rule, however, the misconduct must be pointed out and warned before the termination. This is intended to give the employee a second chance before they can expect to be dismissed. An extraordinary termination is therefore only possible in very rare individual cases. As always in labor law, it depends on the specific circumstances of the individual case. For example, whether private Internet use was permitted to a certain extent, what amount of time private surfing reached on average, and whether there are additional factors such as operational damage, damage to reputation or circumstances relevant to criminal law.

Summary:

  • In principle, private surfing in the workplace is prohibited and a violation of contractual obligations.
  • It is always advisable to conclude written agreements on Internet use. The scope of content and time should be specified in detail.
  • In the absence of a clear agreement, a claim can arise from operational practice.
  • If the Internet use is also related to business matters, it can generally be assumed that the use of the Internet is business-related.
  • The demarcation is particularly important in business-private communication between work colleagues. Here, too, a clear agreement on Internet use is recommended.
  • Under certain circumstances, the employee is even liable for actions taken from the internal Internet access with the company computer.
  • Permanent and systematic monitoring of internet usage is always prohibited.
  • If there are concrete indications of violations of labor law, random checks may be permitted under certain circumstances. However, the employee's personal rights must always be observed and labor law expertise is required.
  • The unauthorized private use of the Internet always constitutes a violation of contractual obligations and can have consequences under labor law for the employee.
  • There is a risk of damage claims, a warning and even termination.

Help with labor law issues:

The internet has penetrated all areas of working life. Employers therefore need a well-coordinated and individually adapted strategy in the areas of labor law, tax law, media law in the workplace and the respective areas that are particularly relevant to you. AHS Rechtsanwälte advises employers and employees on all commercial law issues at its offices in Cologne and Bonn.

Dr. Patrizia Antoni is a specialist lawyer for labor law. She will be happy to advise you on all labor law and tax law issues. Make an appointment in the offices of AHS Rechtsanwälte in Cologne or Bonn.