Employers often encourage their employees to create social media profiles with platforms like XING or LinkedIn since they will also benefit from the marketing effects. However, using social media may also cause substantial internal conflicts. Such a conflict was recently subject to a ruling by the Regional Labor Court of Cologne (Landesarbeitsgericht Köln, LAG) on 7 February 2017 (docket number: 12 Sa 745/16). The court ruled that the fact of changing your occupational status to “freelancer” in your XING profile alone, may not justify a termination without cause due to unauthorized competitive business activities.
The plaintiff and defendant – a tax consultancy firm – mutually agreed a termination agreement with several months of a phasing-out period (Auslauffrist). Just before the end of the employment relationship the defendant noticed that the plaintiff had changed the occupational status of his private XING profile to “freelancer”. The defendant saw this as an unauthorized competitive business activity and therefore issued a termination without cause. Since the social network XING is predominately used for business purposes, the defendant assumed that the plaintiff was actively promoting his freelance activity in competition to the defendant and wanted to steal clients.
The court found that the termination was void. Although employees are principally prohibited from acting in competition to the employer during the entire time the employment relationship is in place, they are allowed to take actions that enable them to compete with the employer once the employment relationship has ended. Therefore, activities are only considered as prohibited competitive behavior if the employee actively promotes his competitive occupation towards the outside world. According to the court, the mere incorrect statement of being currently occupied as “freelancer” without any additional special circumstances, was insufficient to cross the line to prohibited competitive behavior. Another decisive factor was that the name of the defendant was still listed as current activity and that the plaintiff did not state that he was looking for any freelancing clients on his profile.