Legal Situation regarding CEO Influencing

Personal expression on social media has become an integral part of daily life for many individuals, extending to their professional roles and positions. Even board members, CEOs, and advisory board members, like all other employees, are, after all, human. CEO influencing through social media presents compelling reasons. Posts on social media platforms can rapidly and cost-effectively reach a broad audience of potential customers, shaping and enhancing a company’s reputation. Nowadays, companies are often sought and discovered based on their public image rather than solely on their products or services. Additionally, CEO influencing offers the opportunity for direct and authentic communication. Employers can present themselves as innovative and employee-friendly. Insights into a CEO’s daily life humanize the company and establish authenticity, employee and customer engagement, and networking. Furthermore, CEOs can position themselves with expertise, industry knowledge, and company updates to a wide public audience. CEOs with significant reach can influence entire industries, stock prices (not just those of the companies they represent), and even broader economic and political sentiments. However, the positive aspects of public online presence for employees and company leadership can quickly turn unfavorable. Personal opinions on social issues and current events, in particular, pose a significant risk. A recent example is the controversy stirred by a professional footballer in Germany regarding the Israel-Palestine conflict, as reported by my colleague Prof. Dr. Michael Fuhlrott (https://www.linkedin.com/feed/update/urn:li:activity:7120779051803234305/). Social media posts can also swiftly lead to internal disturbances and legal disputes in the workplace. Recent history has seen cases of warnings and even terminations in practice. But what is the legal situation when (senior) employees use social media during work hours to express controversial personal views on public issues? How can social media use in the employment relationship be regulated? If the employer has implemented a Bring Your Own Device (BYOD) concept, there are also legal questions concerning the use of the employee’s device for social media communication.

Employer’s Right to Give Instructions

During working hours, the employee is contractually obligated to provide their work performance to the employer, complete assigned tasks diligently according to the employer’s instructions, and safeguard the employer’s interests. The employer has a certain right to give instructions to the employee, as per Article 321d of the Swiss Code of Obligations. Consequently, the employer can generally forbid the use of social media during working hours or, within the limits of the employee’s personality rights, instruct the employee to do so.

Social Media Policies

To manage social media usage effectively and mitigate risks, it is recommended to establish a social media policy. This policy should explicitly define whether and, if so, what usage is allowed or encouraged, and what should be avoided. The policies should also explicitly define the employer’s rights to monitor and sanction, as well as handle social media usage when an employee leaves the company. These policies should not be rigid but should undergo continuous evaluation and adaptation to the company’s needs, with new employees confirming their acknowledgment upon joining the company. Any changes must be communicated effectively.

Sanctions

In case of an employee’s non-compliance with the employer’s instructions, the employer can issue a warning. If the disregard continues, the employee can be terminated. In the worst-case scenario, an employee may become liable for damages under Article 321e of the Swiss Code of Obligations. However, the premises for an immediate termination are high in such cases. In 2008, the Swiss Federal Supreme Court ruled that excessive use of social media, despite prior warning, did not justify an immediate termination (Swiss Federal Supreme Court ruling of November 24, 2008, Case No.: 4A_430/2008). In such cases, the employer would be left with the option of first issuing a warning or temporarily suspending wage payments. Nevertheless, they would encounter significant challenges in terms of evidence. Monitoring and control systems that oversee employees’ behavior at work are generally not allowed, as per Article 26, Paragraph 1 of the Swiss Employment Act.

What About Freedom of Speech?

The Swiss Federal Constitution protects the right to freedom of opinion and information. According to this, every person has the right to form their opinions freely and express and disseminate them without hindrance, as stated in Article 16, Paragraph 2. Therefore, a termination due to the content of a social media post would be abusive if an employee exercises their constitutional right, as per Article 336, item b of the Swiss Code of Obligations. However, this argument of freedom of speech ceases to apply if the employee’s exercise of their constitutional right breaches their duties under the employment relationship or substantially impairs cooperation within the company. Harmful statements about the employer or its employees can justify an immediate termination. This also applies to criticism that is permissible in an analogue context. What is acceptable in a conversation held in a break room may have different consequences when expressed publicly. If such criticism is broadcast to a broad audience through social media, it may be considered a breach of the employee’s duty of loyalty. The same applies to insulting statements. Disclosing trade secrets on social media is certainly a grounds for immediate termination, as is the publication of false or misleading information. The evaluation of social media use depends on the channel and the specific form of publication, in addition to the content. A post on the employee’s personal profile will be evaluated differently from a statement in a private chat with five or fewer participants. The act of pressing the “Like” button under a controversial post is particularly critical. In these cases, individual case review will require special care.

Implications for Senior Employees

Posts by senior or well-known employees, due to their higher external visibility, are subject to more sensitive boundaries regarding their duties in the employment relationship or cooperation within the company. Since public perception changes, and the public value system is subject to volatility, all relevant external factors that could qualify a post as a breach of duty under the employment relationship or a substantial disruption of cooperation within the company must be considered. Senior employees with a wide reach often contribute to shaping the reputation of the represented companies themselves. If senior employees make a harmful post, the company’s reputation is inversely affected. An incurred reputation damage (whether intentional or not) also constitutes a breach of the employee’s duties and justifies employment-related sanctions. As seen, the argument of freedom of expression is a statutory defense mechanism for employees against employment-related sanctions, but it is also subject to statutory limits. While a person can divide their nature and behavior into a professional and private sphere in an analog context, such separation is legally challenging when using social media. If there are legally codified guidelines for social media use in the workplace, they must be strictly followed. Any doubts about their correctness should be communicated to the appropriate forum and discussed there. For senior employees, their public behavior, due to its higher public perception, is more likely to reach (at least argumentatively) the boundaries of the duty of loyalty under the employment relationship or substantially disrupt cooperation within the company. In cases of dispute, a comprehensive individual case assessment, taking into account all the factors mentioned, is indispensable.

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