Co-determination of the works council concerning Facebook presence of the employer

The Federal Labor Court (Bundesarbeitsgericht, BAG) decided on 13 December 2016 (docket number: 1 ABR 7/15) that the works council has a right of co-determination if an employer launches a Facebook page and allows Facebook users to publish posts on his Facebook page which refer to the behavior or performance of individual employees.

The employer runs blood donor services. One or more doctors as well as up to seven other employees wearing name badges attend the blood drives organized by the employer. In April 2013 the employer established a Facebook page for group-wide marketing purposes and users registered with Facebook may publish posts on the page. After some users had commented on the behavior of employees via such posts, the group works council asserted its right of co-determination concerning the establishment and the administration of the Facebook page, claiming that it allowed the employer to control employee behavior and performance with the help of the page. It also alleged that allowing users to comment on the behavior and performance created enormous pressure on employees.

The Higher Labor Court (Landesarbeitsgericht) rejected the works council’s claim. The appeal of the works council to the Federal Labor Court was partially successful. According to the ruling, the decision of the employer to directly publish posts referring to employee behavior or performance is subject to the co-determination of the works council. As far as these posts relate to the behavior or the performance of employees, it results in monitoring the employees by a technical facility within the meaning of sec. 87 para. 1 No. 6 of the Works Constitution Act (Betriebsverfassungsgesetz – BetrVG), therefore triggering co-determination rights.