False Facebook profiles in ex post defensive monitoring: awaiting the oft-announced reform
- July 30, 15
- Facebook false profile for monitoring the employees
- Defensive monitoring
- Supreme Court decision
False Facebook profiles for monitoring employees
In a recent case a worker was dismissed for cause because, during working hours, he was chatting on Facebook (“FB”), leaving machinery of which he was in charge unattended. Before this episode, the worker had left the machinery on several occasions to use his mobile phone. Such behavior infringed the company’s code of conduct and led the employer to dismiss the worker.
During the legal proceedings related to the dismissal, the employer proved the worker’s illicit conduct with the use of evidence obtained through the monitoring of his FB chat by means of a FB fake profile created by the company’s HR specialist for the purposes of monitoring its employees.
The crucial point inherent in the decision is whether or not the creation of a fake FB profile is to be deemed as defensive monitoring and whether the practice respects employees’ confidentiality and dignity.
As described in our previous articles (including “Ex post defensive monitoring of email and protection of employer’s assets”, published March 2012), the Italian Supreme Court has identified a specific practice of remote monitoring, so-called “defensive monitoring”, which an employer could lawfully carry out without the implementation of a procedure of codetermination with internal trade union representatives (or, where there are no such representatives, the competent labour office) usually required in cases of remote monitoring under Article 4 of the Statute of Workers. Defensive monitoring is permitted in so far as it aims to protect the integrity of the employer’s business assets, although it may potentially identify malfeasance, civil wrongdoing and criminal offences committed by employees in connection with the performance of their professional activities.
In performing defensive monitoring, the employer must take particular care that such control is conducted in a way that respects its employees’ confidentiality and dignity.
Supreme Court decision
On May 27, 2015 the Supreme Court issued Decision n. 10955 related to the case at hand, finding that the monitoring of the employee through a fake FB profile was lawful and that it fell within the definition of defensive control. The monitoring activities were deemed as defensive control for the following reasons: (i) the employer had monitored FB chat ex post (i.e. after it had discovered the illicit conduct of the employee, which was some days before the creation of the FB fake profile) and (ii) the monitoring was aimed at identifying illicit conduct, as opposed to non-fulfilment of employment duties. In fact, the conduct of the worker was deemed by the Italian Supreme Court as having the potential to damage the company’s assets with regard to the regular operation and safety of machinery.
With reference to the modalities of the control, the Supreme Court stated that it respected the employee’s confidentiality and dignity. In fact, the creation of a fake FB profile for monitoring purposes does not infringe on the principles of good faith and fair execution of the employment relationship. On the contrary, it represents a possible means of ascertaining the illicit conduct of the worker: it was deemed non-invasive, consisting only of a solicitation, which is not able to induce the employee to commit wrongdoing. In other words, according to the reasoning of the Supreme Court, the worker was totally free not to leave his machinery and to continue to work, but he decided, consciously, to chat with the fake FB profile during working hours.
The monitoring regulation dates from 1970 and has not been amended since. However, the Italian Government, with the current reform of the Italian labour law (the so called “Jobs Act”), has announced the imminent provision of new and clear rules, which duly take into account employee rights and the technological possibility of monitoring, mostly in indirect form, in order to eliminate all doubts on the lawfulness and fairness of monitoring activities.
In the meantime, only relevant case law allows the Statute of Workers to keep up with technological innovations affecting work performance and the ever-increasing monitoring needs of the employer. In particular, the decision at hand adds one more piece to the monitoring picture, clarifying that monitoring employees’ activities through FB could be deemed as lawful defensive control, and not subject to the procedure defined by the Statute of Workers.
However, notwithstanding such a decision, we would suggest exercising caution when considering the creation of a fake FB account, since this conduct could be judged as a criminal offence, specifically “impersonation”, under Article 494 of the Italian Criminal Code, which consists of the theft or use of someone’s identity for personal benefit and/or to cause damage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.