10 QUESTIONS AND ANSWERS
THE INTERNET AT WORK
Internet Rights Forum
Does an employee have the right to use Internet from his or her work station for personal purposes?
Can an employer open employees’ e-mails or access their hard disks?
Can an employee be made redundant by e-mail?
Should network administrators respond to the request to monitor employees’ electronic mail or files?
Can intranet be used as an electronic notice board?
Can the company trades unions send handouts and electronic mail to employees?
Can Internet be used for professional elections?
Should employees have the right to switch off?
How should the rules for using Internet within a company be set?
Does an employee have the right to use Internet from his or her work station for personal purposes?
From a legal point of view, there are no provisions in the employment code giving an employee right of access to Internet from his or her work station. Nevertheless, a significant number of employees use Internet daily for finding technical, legal and economic information or for communicating by e-mail with colleagues or customers.
Internet can very easily be used for non-business purposes (consulting holiday or transport sites, sending private e-mails etc).
In these circumstances, when there is a presumption of professional use of the Internet at work, the Forum considers that an employee should have the recognised possibility of using Internet for personal purposes. Nevertheless, this use should be reasonable in order not to damage the effectiveness of the work or adversely effect the enterprise. The employer can therefore legitimately set the rules of conduct and put in place the means of monitoring it in accordance with the legal provisions.
To achieve this, the Forum recommends that after a short period of prior consultation with the staff representation institutions, or negotiations should the management and unions wish it, clear and explicit provisions are incorporated as an appendix to the internal regulations of the enterprise.
Can an employer open employees’ e-mails or access their hard disks?
It is natural for an employer to try to safeguard the integrity of enterprise’s computer system and to ensure that Internet is not used illegally or incorrectly from the workplace. It is also an employer’s responsibility to monitor the productivity of the workforce.
By virtue of their management powers, employers may monitor the activity of the employees during working hours. However, employers may not put monitoring mechanisms in place without informing employees, staff representation institutions as well as the CNIL for nominative automated information processing. If employers do not do these things, any monitoring mechanisms are considered illegal and may be used as proof in civil proceedings.
As far as monitoring mail sent or received by an employee is concerned, employers may read the contents of business correspondence but, in accordance with the confidentiality of correspondence, may not read e-mails identified as being personal. In the same way, files identified as being personal may not be opened.
Consequently, the Forum recommends that employees clearly indicate in the reference line of electronic mail or in the identification of their files whether the message or information contained is of a professional or personal nature. In the latter case, the employer may not have access to their contents.
Obviously, an employee must promise not to “transform” professional information into personal information dishonestly. This obligation should be included in internal regulations. It follows on from the principle contained in article. L. 120-4 of the employment code according to which “the work contract should be fulfilled in good faith”.
The provisions relating to the procedure for making an employee redundant are provided for in the employment code in articles L. 122-14-1 and those following. The employer planning to make an employee redundant should firstly invite the person concerned to an interview. Only subsequently is an employee notified of the redundancy.
The invitation to an interview should be made in a registered letter with proof of receipt or by a letter handed over in person against a receipt. The notification itself is made by registered letter with proof of receipt.
The procedure described above cannot be reconciled with the use of electronic mail. In fact, it expressly provides for a well codified procedure based on the medium of paper. As the law currently stands, the substitution of an e-mail for a letter would constitute an irregularity in the procedure and would therefore be considered as detrimental to the interests of employee and would require the employer to rectify it. It would be the responsibility of a court of law to decide the amount of the prejudice sustained.
However, an employer may circulate general information concerning the company situation or overall redundancies by e-mail. It may also use this method to inform an employee of his or her redundancy, but this e-mail would only be in addition to and after personal information addressed to the employee in accordance with the formula stipulated by the law.
Should
network administrators respond to the request to monitor employees’ electronic
mail or files?
With the development of information and communication technologies, a company network administrator or any other employee responsible for managing the computer system in an enterprise has to carry out a certain number of sometimes sensitive tasks.
In a ruling dated 17 December 2001, the Appeal Court in Paris rightfully reiterated the fact that it falls within the role of network administrators to guarantee the normal functioning of networks and to monitor their security. This implies that they should have access to all the data contained in the network in order to be able to resolve technical problems, particularly those relating to computer security.
Nevertheless, although network administrators have access to all company data in the exercise of their functions, they are not free as regards the use of this data. Thus, they may not divulge the content of an employee’s personal correspondence, including at the request of the employer. They run the risk of being criminally responsible on the basis of article 226-15 of the penal code, which condemns opening or reading correspondence destined for others in bad faith.
This obligation of confidentiality also has to include the content of files that an employee may have stored in a personal area of his or her computer.
In order for the role of the company’s network administrator to be clearly recognised and with concern for transparency, the Forum considers that the obligation of confidentiality that weighs on the administrator should be included as an appendix to internal regulations dealing with the use of information technologies. In addition to this, it would be necessary to enshrine professional secrecy for network administrators into the law.
The employment code does not contain any provision that recognises the right to use intranet (an internal company network) by trades union organisations or more generally by any staff representation institutions.
However, for a growing number of enterprises ([1]), intranet now represents an important method of communication. It may be a computer tool, a training tool or be used to communicate with all employees. Given these conditions, the Forum considers it legitimate for trades union organisations and more generally all staff representation institutions to be able to use this method of communication to communicate between themselves and with the employees by having the essential technical means available and a space reserved for them on the company’s intranet site.
In the public sector, inter-ministerial recommendations on the use of information and communication technologies (ICT) by trades union organisations were published on 19 June 2001. These recommendations should serve as the basis for drawing up ministerial charters allowing trades union organisations to benefit from the new technologies in order to simplify their day to day tasks and enrich the dialogue between management and unions. More than twenty agreements are in the process of being adopted in the private sector (in particular in enterprises such as France Telecom, Renault, Bull, ACCOR...).
The road of formulating agreements between management and unions has to prevail in order to determine how intranet is used by the staff representation institutions. Any agreement has to create a fair balance between employers’ imperatives of security and responsibility and trades unions’ freedom of expression within an enterprise.
Can intranet be used as an electronic notice board?
Displaying trades union information is provided for in article L. 412-8 of the employment code, which talks about posting information “on notice boards reserved for this use” without mentioning any particular medium. In practice this has been a wooden notice board. Although some enterprises already have a notice board on intranet (see France Telecom agreement dated 11 September 2000 or that of the Accor group dated 17 May 2002), the question of whether this article applies to digital media can be posed.
Firstly, article L. 412-8 does not in principle seem to exclude electronic display of trades union information on an intranet page of the company insofar as the form of the document is similar to that of a printed sheet displayed on a classic notice board. Secondly, the parallel may become more ambiguous if account is taken of the new functionalities of electronic display, particularly its interactivity.
Starting from the principle mentioned in the previous question on the legitimacy of access for staff representatives to a company’s intranet, the Forum recommends agreements between employers and unions, as equal partners, to determine how electronic notice boards may be used.
As far as the substitution of traditional notice boards by electronic ones is concerned, it could be a source of discrimination if from a practical point of view all employees do not have the same ease of access to the information.
Can company trades unions send handouts and electronic mail to employees?
Article L. 412-8 provides for handouts being freely distributed to employees within the enterprise at the beginning and end of the working hours and for the content of these to be freely determined by the trades union organisation concerned.
It appears that the distribution methods for these paper handouts provided for by the law lend themselves only artificially to the functionalities of Internet. As a result, sending all employees union handouts via the company internal message system cannot be considered the equivalent of distributing paper handouts. For the time being there is therefore no right to distribute “e- handouts”.
However, the methods of distributing these “e-handouts” could be negotiated in the framework of an agreement on the use of intranet by trades union organisations. These negotiations would therefore lead to a definition of a specified number of deliveries and a limited volume so that the functioning of the computer system is not affected. The handout should be identified in the reference line of the message so that employees not wishing to receive it are able to reject it. A system for removing the subscription of an employee from the staff representation mailing list on request should be provided for. Failure to respect these safeguards would lead sanctions being applied to any trades union contravening these rules.
Furthermore in the same agreement, trades unions could be authorised to communicate with company employees by e-mail. Such correspondence would however be subject to similar requirements as those for handouts, so that exchanges between trades unions and employees are not such as would damage the functioning of the enterprise.
Is it possible to use Internet for professional elections?
Today, classic voting procedures may seem clumsy and expensive. In fact, peripatetic employees, teleworkers and multiple sites complicate the task of organising these procedures for those responsible for human resources. Furthermore, employee participation in these ballots remains low.
Information and communication technologies could not only open up interesting ways of encouraging employees to express their views in the framework of professional elections, but also interesting ways for straightforward consultation with employees or staff representation organisations within the enterprise.
It would be advisable to distinguish the methods of providing employees with information in preparation for the election from those of the voting procedures themselves.
Information provided to employees via intranet could be negotiated within the agreement on the use of intranet by trades union organisations.
In relation to the voting procedures, from a legal viewpoint there is no provision for electronic voting or for distance voting by Internet. In articles L. 423-13 and L. 433-9, the employment code lays down that the election of staff delegates to workers councils should take place by secret and sealed ballot. Consequently, from a legal viewpoint, it is not currently possible to validate elections that are carried out electronically.
However, employee consultation on the initiative of either staff representation institutions or employers is not prohibited.
It should be noted that electronic ballots are admissible in shareholders’ annual general meetings. The public authorities set the condition for use of these new in formation technologies in the law of 15 May 2001 relating to the new economic regulations and in its respective decree on enforcement on 3 May 2002.
The Forum considers that it is a natural evolution of methods for participating in public and professional life: this evolution should be encouraged in a technical framework that provides all the necessary safeguards in relation to accuracy and respect for the fundamental rules of electoral law.
Should employees have the right to switch off?
For several years, under the effect of the spread information and communication technologies within the working environment, it has been possible to observe a close inter-penetration of personal and professional lives. The “electronic leash” is cited, which means that employees can be reached at weekends or on holiday.
This has led some observers to raise the issue of putting a genuine right to “switch off” into place.
It should be remembered that the existence of a private sphere has been recognised in law for a long time. Thus, article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides the right to respect for private and family life. Article 9 of the civil code lays down the basis for the right to respect for privacy and private as well as home life.
The right to work does not directly mention this right to switch off. However, article L. 220-1 of the employment code lays down that “Every employee should have a minimum of eleven consecutive hours a day time off” and article L. 221-4 provides for twenty four hours a week off. During these periods of time off, employees should not be disturbed by either employer or colleagues.
These articles could embody this period for switching off. In a recent decision on 10 July 2002, the Appeal Court provided significant enlightenment by considering that time off “presupposes that, except for exceptional circumstances, the employee is totally free directly or indirectly from having to undertake any work for his or her employer, even if only potentially or occasionally”. An employee can therefore rely on these legal safeguards to ensure he or she is able to benefit from a genuine right to switch off, thus safeguarding the personal sphere.
The question is then how this response can be applied to the realities of enterprises and to the different categories of employees working with the assistance of digital media.
The Forum considers that internal discussions should be initiated within companies in order to ensure that this right to switch off is effectively applied by establishing clear regulations for the proper use of information technologies. These could be formalised in codes for good conduct established by the employer in conjunction with staff representation institutions.
How should the rules for using Internet within a company be set?
For several years, employers have adopted a number of provisions with the aim of informing their employees about how Internet should be used. The term most commonly used to describe these texts is “a charter”.
The content of these charters varies greatly. Some are only general reminders of instructions about caution and proper use of technologies. Others, however, impose obligations that may be subject to sanction. Similarly, the status of charters differs from enterprise to enterprise. Some take the form of an appendix to internal regulations, others are merely documents that are brought to the attention of employees.
All these texts are useful as they promote thinking or indeed promote dialogue on the introduction of these technologies in a company. They all aim to very clearly define the rights and duties of the employee in relation to the use of Internet in the professional environment.
However, the legal value is very different, varying according to the methods employed for adopting them. Among these, the Forum considers that only an appendix to internal regulations is able on one hand to offer a clear mechanism that everyone knows about and on the other hand to make it possible to apply these provisions based on effective sanctions if the rules set are ignored.
The Internet Rights Form
17 September 2002
[1] – A study undertaken in 2000 by BVA for Manpower revealed that 61 % of DHR in enterprises of more than 100 employees have intranet available.