Social media use has grown at an unprecedented rate worldwide, involving hundreds of millions of users. Its meteoric rise creates opportunities for organisations when hiring, but there’s also the risk that social media use could undermine employee productivity and expose employers to liability or reputational damage.

This article provides practical information on social media and employment in the Netherlands, Luxembourg and Belgium for employers trying to navigate the intersection of social media and the workplace.

Social media vetting

Employers are often tempted to conduct extensive research on a job applicant’s Internet presence (‘social media vetting’) before employing him or her. Although there is no specific legislation or case law in the Netherlands, Belgium or Luxembourg on using social media for recruitment, there are useful guidelines. For instance, the Recruitment Code in the Netherlands outlines how to respect an applicant’s privacy during the process. In addition, there’s the CNPD (Commission Nationale pour la Protection des Données, the National Data Protection Commission) in Luxembourg and a general collective bargaining agreement on recruitment and selection in Belgium.

Consulting social media sites and processing personal data that can be found there (for instance, by inserting profiles into a company’s database) is processing of personal data, implying that the European Union’s (EU’s) General Data Protection Regulation applies. It is generally assumed that a recruiter or employer can process personal data in, say, a public LinkedIn profile if the person indicates that he or she wishes to be contacted for employment. The company must, however, inform the job seeker about this processing.

Misuse of Social Media and Reputational Damage

Dutch and Luxembourg case law establishes that a person’s right to privacy extends to the workplace, which in general means that employees must be able to occasionally send a message on WhatsApp or check their LinkedIn or Facebook accounts. This, of course, raises the potential for ‘cyberslacking’, which can hurt an employee’s productivity. In Belgium, it is up to the employer to decide to what extent employees can use social media at the workplace for private reasons. In Belgium and Luxembourg, the employer is allowed to monitor the employee’s use only if there is a clear policy to do so and it follows strict proportionality rules, meaning that the monitoring is appropriate for attaining the employer’s objective.

In addition, employees can harm an employer’s reputation by posting personal statements on social media about their employer. In one recent case, a Dutch employee with the national postal institution posted a reaction to a news story on Facebook about a huge bomb attack in Istanbul: ‘It’s a pity that there are just 29 casualties, should have been many more!’ the employee wrote. The employee’s Facebook profile included his employer’s official logo. The employee was fired.

In Belgium, judges tend to consider whether an employee acted intentionally or could be assumed to understand the impact of a post. For instance, the firing of a restaurant cook who called her colleague a ‘dirty Albanian’ on Facebook was found to be unjustified because the employee immediately apologised. But a court upheld the firing of a financial controller for a stock-listed company who openly criticised his employer on LinkedIn.

And in Luxembourg, a court decided that a worker should not have been fired after he made remarks on his Facebook page that the employer considered outrageous and humiliating. The court reasoned that the comments were visible only to a small group of users and that the employer failed to show any detrimental impact from the post.

There is a flip side: Employers should be aware of their own social media behaviour. Posting negative statements about a former employee on social media, for example, might lead to lawsuits.

Best Practices

Below are some best practices that may help guide employers in the Netherlands, Belgium and Luxembourg, and in other EU countries.

• Give notice before collecting and using social media information in background checks.
• Use personal data only when the applicant’s profile clearly indicates that he or she wishes to be contacted about employment.
• Be aware that relying on information collected through social media sites creates a risk of discrimination claims if an employer appears to reject candidates based on legally protected characteristics.
• Beware of potential liability for bypassing user-created restrictions on accessing social media content, especially if false pretenses or coercion are used to gain access.
• Consider that information posted on social media may be inaccurate or out-of-date.
• Establish a company policy on using social media at work, to avoid misuse or reputational damage.

Reprinted with permission from SHRM.org. c 2019. All rights reserved.

The original can be read here.