Sibele de Oliveira Pimenta
Lawyer at Marcos Martins Advogados
Social networks have long since ceased to be used only for pastime and leisure purposes. It is an undeniable fact that they are now part of our daily lives, as a tool for interpersonal relationships, and are widely used even in the judiciary.
As far as employment relationships are concerned, whether in the search for candidates or offering job vacancies, or in the pre-contractual phase, to analyze the profile of the candidate for the position, or in the production of evidence in legal proceedings, the use of the internet has required companies to readjust their internal policies, whether to regulate the use of social media during working hours, or to monitor conversations and constant messages in e-mails and corporate applications made available by the employer.
This is due to the inappropriate use of social networks, which are sometimes used to spout offenses that could damage the company’s image. But how should the employer proceed, when the Federal Constitution guarantees the right to freedom of expression? Wouldn’t it be the employee’s right to criticize their employer, given that many today use social networks as a form of diary, in which they share their joys and sometimes vent? What should be done when an employee oversteps the boundaries, using a work tool in a distorted way during working hours to discuss intimate issues that have nothing to do with professional activities?
Well. The growing number of cases heard by the Labor Courts make it clear that the company and its managers have the full right to protect their honor and image, especially when the comments made by the employee are defamatory, damage and damage the company’s name and reputation or even offend the honor of employees, managers and managers. Disclosure of strategic and internal company matters, and inappropriate use of corporate emails are also considered serious misconduct, since employees are expected to behave with the same zeal on social networks as they do in the workplace.
As a result, inappropriate acts, even if carried out on social networks, when they somehow tarnish the company’s image, will give rise to serious misconduct that authorizes the termination of the employment contract for just cause. In other words, the worker’s freedom of expression cannot cause damage to the image and reputation of his employer.
However, dismissal for just cause, since it is the maximum penalty applied to an employee, with serious consequences, including financial ones, cannot be disproportionate or too severe in relation to the act carried out by the worker. The employer, therefore, must be diligent, warning and penalizing the employee who, with inappropriate behavior on social networks and inappropriate use of the internet in the company, causes any disturbance to the work environment and damage to the employer, observing the principle of gradation of penalties, consisting of a warning and subsequent suspension, in order to legitimize the contractual termination in a motivated manner.
Thus, the employer is not obliged to accept disrespectful conduct practiced by its employees on social networks, but in order to dismiss for just cause it must have robust proof of the facts that gave rise to it and its effective classification in one of the hypotheses set out in art. 482 of the CLT, proving the employee’s animus to publicly offend the company’s honor and good reputation, affecting the trust and respect necessary to maintain the employment relationship between employer and employee.
Also with regard to social networks, the Labor Courts also consider the possibility of applying just cause to situations in which the employee is absent from work claiming illness, but posts photos in moments of leisure and relaxation.
But it’s not just offenses on social networks that can lead to dismissal with cause. As mentioned above, improper use of the company’s corporate e-mail for private purposes or access to inappropriate websites can also lead to dismissal for just cause. In fact, it must be made clear that monitoring, restricting or even blocking access to the internet is a preventive measure by the employer, and fully within the employer’s directive and regulatory power. There is no question of preserving the employee’s privacy, since the corporate email is not made available to the employee for personal use, but only for work.
In fact, case law has already settled on the validity of data extracted from social networks, such as Facebook, Linkedin and Instagram, as valid means of evidence in labor cases, including for rejecting the benefits of free justice, and there is no talk of a violation of intimacy and private life when the employee exceeds the limits of the right to freedom of expression by denigrating and slandering the employer on social networks.
There is also no abuse in the limitation imposed by the employer on the use of social networks during working hours as a way of avoiding a drop in productivity, since the employee is expected to be committed to his job.
Therefore, as a precaution, employers should always obtain their employees’ signatures on a term of commitment and responsibility regarding the use of the company’s software, electronic message boxes and internet. They should also expressly prohibit the sharing of login and password access, and it is essential that they provide their employees with an Information Security Policy setting out the rules for the use of the internet in the company.
Thus, it is clear that there are countless consequences and implications of the internet and social networks in work relations, and it is up to the worker to maintain appropriate behavior inside and outside the workplace. It is important to note that improper use of the internet can cause serious damage to the employer, who will have to deal with low productivity, There is no doubt that employee misbehavior deserves to be repressed, but always observing the gradual application of warning and suspension penalties due to misuse of company tools and the internet in general.
