Surfing instead of working?

The fun is over in Zurich: for the past two years, city employees have no longer been able to maintain their private contacts via the Facebook internet platform during working hours. After the countless accesses massively impaired the performance of the network, the city council had access blocked. After all, people should be working, not surfing.

Legally speaking, an employer can justify such a ban with his right to issue instructions. He can tell his employees what tasks they have to carry out during their working hours and how they may use the work equipment provided to them. This includes blocking certain sites and restricting or completely prohibiting private Internet use.

However, legal doctrine is of the opinion that employees may make private telephone calls during work unless otherwise stipulated in the company regulations, provided they do not do so excessively. Otherwise, private telephone calls are permitted during breaks. If a company has no company regulations governing private Internet use, employees may assume that the same rules apply to surfing the Internet and private e-mailing as to private telephone calls. The data protection officer of the Canton of Zurich goes even further, based on a federal court ruling: in his opinion, employers must provide their employees with Internet access for use during breaks if use at the workplace is prohibited or not possible.

Monitoring options and sanctions

What should you do if employees surf and email privately to an excessive extent? In practice, it is difficult to prove misconduct at all. Employment law prohibits the permanent monitoring of employees. Employers are only allowed to check what their employees are doing on the Internet during working hours within certain legal limits. Such monitoring is permitted if the workforce is informed that random checks are occasionally carried out. Continuous monitoring is only permitted if it does not allow any conclusions to be drawn about the user.

If an employee is found to be surfing, emailing or chatting excessively in private during working hours, the employer must first issue a warning. If this is unsuccessful, the employment relationship can be terminated for breach of employment law obligations.
Employees can now easily avoid being monitored by using their private devices to make calls, chat and surf the internet at work. A ban on cell phones during working hours is generally permissible, but only in very specific exceptional cases. For example, if the work process, performance or safety in the company would be disrupted, such as in professions with public contact, in the public sector or in hospitals. However, employers may not prohibit their employees from using their cell phones during breaks. To prevent conflicts, companies with a certain number of employees should regulate such issues in company regulations.

Link: Fact sheet "Explanations on telephone surveillance at the workplace" from the Federal Data Protection Commissioner: http://www.edoeb.admin.ch/themen

Book tip

Labor law
From contract to termination
This handbook by the Beobachter employment law specialist provides an overview. What should be included in an employment contract? What to do in the event of a pay cut? What about overtime? How do I give notice correctly? How can I defend myself? Here you will find competent answers to your questions, groundbreaking court rulings and lots of practical tips.
272 pages, Fr. 36.- 11th, revised and updated edition, 2011
ISBN 978 3 85569 440 2 Beobachter-Buchverlag