Attention to the use of social media by employees inside and outside the workplace

Attention to the use of social media by employees inside and outside the workplace

The Supreme Court has deemed it legitimate to dismiss an employee who uses inappropriate and offensive language on their social media profiles.

Good morning dear listeners, today with Lawyers Maria Palarovetta and Jacopo Moretti we are going to talk about a very interesting and debated topic, the use of social media in the workplace.
The Supreme Court, in its ruling of February XXI, two thousand and twenty-four, number sixty-five and forty-three, found legitimate the dismissal of an employee who uses inappropriate and offensive language on his social profiles, even if outside working hours.
The employer has the power to act to protect the corporate image, even with reference to conduct that occurs outside the work environment, but which may have an impact, even in direct, on the reputation of the company. Moreover, in the case at hand, the company had a social media policy, i.e., a set of rules aimed at defining the correct way for employees to use the social network.

Jacopo, what is the social media policy?

The Social Media Policy is the code of conduct that governs employees’ behavior and relations with the employer on social media. It consists of rules directed employees with the purpose of informing them about the use of social media and the disciplinary consequences of misbehavior.

Maria Paola, what social media posts are punished by our regulations?

Particular attention deserves the issue related to the dissemination on social media of messages or statements that are offensive to the employer. This is an issue where it is appropriate to highlight the line between the exercise of the right of criticism and injury to the honor and reputation of the company.

So, Jacopo, right of criticism, when is it possible without incurring sanctions?

The right of criticism finds its foundation in Article XXI of the Constitution, according to which everyone has the right to freely express his or her thoughts by speech, writing and any other means of dissemination.
This right must, however, be exercised with respect for other values of constitutional rank, such as the honor and reputation of the person to whom the criticism is directed, such as, in the case of the employment relationship, the employer.

Maria Paola, can criticism be harsh, heated and strong?

So, the right to criticism is sacrosanct, but the criticism must not exceed continence, that is, it must not degenerate into unjustified offenses toward the morality and professionalism of others, especially if it is one’s own work context.

Jacopo, when criticism turns out to be excessive, what are the consequences?

Criticism directed at superiors in an excessive manner can be detrimental to the business organization and thus have consequences from a disciplinary standpoint.

Maria Paola, why in case of violations of these principles are you sanctioned?

Because according to case law this kind of attitude is to be considered in subordination. But can the worker who is caught spending part of his time on social media, even for reasons that have nothing to do with the work context, be fired? On the point Stephen, case law is divided, as it depends a lot on individual concrete cases. However, the prevailing view is that dismissal is legitimate when the employee’s use of social media during working hours occurs for a decidedly significant period of time, such that it constitutes a repeated and intentional misuse of the company tool.

Maria Paola, can the employer monitor web traffic and sites visited by employees?

This is also a very controversial topic in case law and is one of the many problems related to so-called defensive controls by the employer. On the one hand, in fact, we talk about so-called defensive controls in a broad sense that affect all employees and fall under Article IV of the Workers’ Statute and within the scope of privacy regulations. And on the other hand, we talk about so-called defensive controls in the narrow sense aimed at ascertaining ex post illicit conduct that affects an individual employee and which are exempt from Article IV according to case law.

Jacopo, at this point, what is the direction of case law?

The most recent jurisprudence has allowed controls put in place by the employer when there is a well-founded suspicion about the commission of a wrongdoing and as long as the control relates to data acquired after the suspicion arose.

In conclusion, it is clear that the separation between private and work life is thinning, especially in the digital age. Companies should consider adopting a clear and detailed social media policy.
Dear listeners, thank you for following along with us in this discussion, and don’t forget to consult us to ensure that your policy is up-to-date and appropriate to current regulations. Until the next installment!

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