The development of digital communication and widespread use of social networks have opened up new issues in the field of labor law, especially when it comes to the boundary between an employee’s private life and his obligations to the employer. In situations where the behavior of an employee on social networks can negatively affect the business interests or the reputation of the employer, the question of applying labor law sanctions due to such behavior is justified, i.e., whether it can represent a violation of work obligations or non-compliance with work discipline.

The question is legitimate, especially if one takes into account the fact that employees primarily perform their work duties during working hours, while the violations in question regularly occur outside of working hours, but also the fact that given the context in which the activities are undertaken, certain rights of employees must be taken into account.

Violation of Work Obligations and Non-Compliance with Work Discipline per the Labor Law

The Labor Law stipulates that the employer can cancel the employment contract of the employee if he violates his work obligations or does not respect work discipline through his own fault.

In accordance with Article 179, paragraph 2 of the Labor Law, the employer can cancel the employment contract of the employee if he/she commits a violation of the work obligation established by law, general act or employment contract through his/her own fault. In addition, Article 179, paragraph 3, foresees the possibility of dismissal in case of non-compliance with work discipline, especially if the employee’s behavior is such that he can no longer continue working for the employer.

From the aforementioned provisions, it follows that the law does not limit the violation of work obligations/non-compliance with work discipline exclusively to actions during working hours, and given that the characteristics thereof, depending on the circumstances of the case, can be realized by actions or omissions outside of working hours.

Posts by Employees on Social Networks

Social networks represent a space for private communication and free expression of opinions, but posts and actions of employees on them can have indirect or direct consequences for the employer and its business. In practice, examples of such situations are:

• publication of confidential information owned by the employer, the employer’s client or third parties, and which the employee obtained through work,
• insulting or disparaging comments about the employer, managers or colleagues,
• announcements that may damage the employer’s reputation or business relations with third parties.

In this regard, in this particular case, the employer’s legitimate interests in this domain can be opposed by two rights guaranteed by the Constitution of the Republic of Serbia, namely: the right to privacy and freedom of opinion and expression, whereby the Constitution of the Republic of Serbia instructs that these rights, as well as other human and minority rights guaranteed by the Constitution, may be limited by law if the limitation is permitted by the Constitution, for the purposes for which the Constitution permits it, to the extent necessary to satisfy the constitutional purpose of the limitation in a democratic society and without encroaching on the essence of the guaranteed rights.

Accordingly, with regard to monitoring the behavior of employees on social networks, as a form of restriction of the right to privacy and processing of personal data of employees, employers should examine the permissibility of such processing, the conditions for its implementation and the rights that employees must provide in that case, primarily guided by the provisions of the Personal Data Protection Act and the Labor Act.

At the same time, since the line between the permitted expression of opinion and the violation of certain legitimate business interests of the employer can be thin, it is necessary to examine the frameworks for qualifying the employee’s actions as illegal – labor law (through the provisions of the Labor Law, general acts of the employer and the employment contract), civil law and eventually, criminal law.

Conclusion

Social media activity, even outside of working hours, may certain situations may represent a violation of work obligations or non-compliance with work discipline. However, in such cases legitimate business interests of the employer may be opposed to the rights of employees guaranteed by the constitution, and the employer must be specifically careful if he intends to monitor the behaviour of employees on social media networks and apply sanctions against the employee due to violations committed in that way.