Lots of testimonials. Here, a lawyer at the helm of the industrial tribunal brandishes the LinkedIn profile of his opponent: “He set up a company while he was still an employee”. Another: “Less than ten days after his departure, he was stationed at the competitor, and he speaks of prejudice?” The platform is a reflection of a career. Some people even minimize or suppress certain experiences. Arnaud*, in proceedings with his ex-employer, deplores that the latter continues to investigate his profile. “What exactly is he looking for?” he asks himself. He feels watched and even oppressed.
For his part, Benoît* received “visits” on his profile for years, stigmas of a past that he considered to be over… until his trial period was terminated with an employer after a call from his former boss. “What about the legitimacy of the use of information by the employer found on social networks against an employee?” asks Jacques Perotto, associate lawyer in employment law within the Alerion firm.
“We collect a lot of useful information”
“We have, on the side of employees, the feeling of sometimes being stalked when the employer searches social networks to obtain the information he is looking for, in particular to verify assertions or fuel a dispute. Except that this information is public when “They are distributed outside the private sphere and therefore, by definition, usable by everyone”, continues Master Perotto. And detectives, too, also operate digitally. “As a lawyer acting in the context of litigation, in particular in matters of unfair competition, I could resort to the summons to communicate this or that document to the counsel of the opposing party, a document of which I was not unaware existence after having resorted, for example, to a private detective but which I nevertheless did not have in my possession”, he admits.
“Today, we collect a lot of useful information for our files via social networks, the reliability of which is difficult to question since it is published by the account holder himself,” continues the expert. It therefore remains for the employee to choose the information they give if their profile is public. He can close it by restricting his relationships to ensure the confidentiality of his remarks in order to prevent an unauthorized third party from taking confidences and divulging them. The question of freedom of expression then arises: what can we say on social networks?
Unlimited freedom of expression?
“I am regularly contacted by companies for comments made anonymously by employees or former employees on sites like Glassdoor and the purpose of which is always to reveal a more or less serious fact against their employer: this ranges from criticism of social policy to accusations of moral or sexual harassment, including the denunciation of a disciplinary procedure against an employee or even economic dismissal”, indicates Jacques Perotto. However, acts of harassment must be resolved before the judge and not through forums published anonymously. “Credit is given to anonymous denunciation, synonymous with free speech, even though the accusations are made without proof, deplores the lawyer. When a manager is wrongly the subject of an accusation of sexual harassment , this is indeed defamation.”
“Name and Shame” (publicly denouncing) or the “Streisand effect” (a limited phenomenon which takes on an uncontrollable scale) amplify the virality specific to social networks: reputational risk can cause a stock price to plummet. The difficulty therefore lies in the arbitration between the right to express oneself freely in the company which is fundamental and which admits of no exception and the respect for human dignity or the attack on the interests of the company.
In addition, a management executive has the same right to express himself as another employee. “However, what should we think of the criticisms emitted by this same management executive against the commercial strategy of the company towards which the person concerned, taking into account his status, level of responsibilities and functions, must theoretically demonstrate solidarity?”, points out the lawyer. The latter recommends putting in place a charter, “if possible negotiated with the social partners and annexed to the company’s internal regulations containing the conditions of use of social networks”.
*First names have been anonymized.
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