Digital company affiliation and their treatment by the employer
LinkedIn, Xing and Co.: The first step towards career mostly begins online today. Career networks are often the springboard here. Some use them to present their CVs and special skills, others to recruit future employees.
Once the job has been found or the change was made by one employer to the next, interest often flakes off. The employee profile is "frozen", a necessary update is refrained. Ex-employers in particular react upset when the employee is (finally) gone, but the virtual belonging to the company repeatedly revives the memory of him. So what can you do?
How should you react?
The question arises whether the former employer is entitled to the end of company membership in the career networks.
The answer is: yes.
Basically, both LinkedIn and Xing prohibit incorrect information in profiles in their respective terms and conditions. If an employee does not update his profile immediately, it violates the terms and conditions of the network. In this case, the profile of the user can delete the profile of the user due to violation of the terms and conditions or act legally against him.
However, this does not result in a direct claim of the (former) employer.
So far, the labor courts have not yet had to deal with the question of deleting information from an employee profile. Therefore, there is a lack of meaningful case law. This topic also leads a shadowy existence!
Regardless of this, the employer, in our opinion, can claim a claim from ancillary employment obligations. These ancillary duties result from Section 241 (2) of the German Civil Code (BGB) in conjunction with the employment contract. According to the general rules of Section 241 (2) BGB, each employment contract party is obliged to consider the rights, interests and legal goods of the other. Such ancillary duties also apply in principle even after the termination of the employment relationship. These ancillary duties include the ban on damage to the interests. The claim, if weighing a interest on the update of the profile of the former employee, outweighs the interest of the former employer.
The former employer speaks for a claim for deletion from the former employer that he has to be attributed to competitive violations if the profile of the former employee is not yet updated.
How can the former employer enforce his claim?
The former employee should be asked to update the profile promptly. Most of the time the employee reacts understanding and makes the change in the profile. If he does not react within a reasonable period of time, it should be asked again in writing (text form is sufficient) for a change with a deadline.
If the former employee does not react, the submission of a punitive injunction can be requested. If he does not react to this either, the claim of the former employer can be enforced by means of interim legal protection.
A separate employee will usually not accept such a work and cost expenditure and will make the change after the second period or at the latest after the declaration of injunction. If the employer has had success in legal protection, he can enforce the injunction granted to him by the court by way of enforcement and secure his rights.
Exemplary case law
In practice, digital company affiliation takes on an increasing aspect. This is also shown by the following facts, which was decided by the State Labor Court (LAG) Cologne on February 7, 2017.
The plaintiff was a former employee of a tax consultant office. It was released in February 2015, and the employment contract should only end on March 31, 2016. The plaintiff was registered in the Xing career network. In March 2016, the employer found that the plaintiff stated his professional status in his profile as a "freelancer", although the employment relationship still existed at that time. After the employer had become aware of this, he expressed the extraordinary termination without notice. The plaintiff submitted an action for dismissal against this termination and was therefore successful. This was confirmed by this decision. In his decision, it stated that the termination was ineffective. For them, it lacks an important reason that arises for an extraordinary termination from § 626 BGB. The incorrect statement in the XING profile as a "freelancer" does not constitute a violation of work obligations in the form of the competition. This does not violate the prohibition of competition. An inadmissible competitive activity can therefore only be assumed if a competing activity is actively advertised and clients are advertised via the profile in the career network.
The LAG Cologne has positioned itself. However, it is conceivable that another court in the pure statement as a "freelancer", during a still existing employment relationship, would have seen active advertising for competing. The plaintiff would then violate the ban on competition. This information in the profile alone could persuade a future customer to select and contact the employee instead of the employer.
Conclusion
The case law on digital company affiliation and their treatment by employees and employers is currently still thin.
With the steadily increasing digitization, company membership in career networks and the coveted deletion from the former employer will receive more attention and also produce a case law.
Until then, employers should deal with this topic at an early stage and find solutions for dealing with company affiliation in career networks. For this, employment contract clauses as well as information in the social media guidelines are ideal.
As a result, it should be noted that an employer is entitled to delete company membership in a career network. The way there is still stony and nerve -wracking, but in any case visible.
