Facebook addicts can get fired in Brazil

Posted by By Mark Hillary at 19 July, at 04 : 45 AM Print

The IT Decisions publishing director, Angelica Mari recently started a discussion on LinkedIn focused on the legality of employees using the Internet at work. She asked:

“In Brazil, using the web for more than an hour for activities that are unrelated to work is considered as gross misconduct and can lead to justified dismissal. What is the legal situation when it comes to “excessive” web use in other countries?”

I have to confess. The story that led to this question left me feeling uneasy. Brazilian organizations were proposing to tinker with employment law so that a specific measure about unauthorised use of company resources – including the web – for more than an hour could be classified as gross misconduct and therefore grounds for dismissal.

That’s potentially fair, if someone spends all day on Facebook then they might deserve the bullet, but why should the government be getting involved? Are there specific measures in employment law that detail what happens to employees who call their mother too frequently, or use the bathroom too often?

I doubt it, but then I’m not a lawyer, so my outrage at government interference may be wildly misplaced. Fortunately, the LinkedIn question did attract comments from more legally-aware individuals, giving examples from several jurisdictions outside Brazil:

• United Kingdom: In the UK, no such law – but internet use policies will generally be included as part of an “acceptable use policy”, for example, as part of an employee’s staff handbook, which will form part of the employee’s contract. Having good employee contracts, clearly promoted staff guidance on internet use, and IT policies which prevent access to non-work sites should all be used. And, of course, if an employee is spending so long surfing non-work sites that they aren’t doing their job, that might justify going down a disciplinary route, ultimately ending in dismissal.
• USA: In the US, the personal use of communication tools is generally addressed in the employee handbook and policy is set by the employer, not the state, federal or local government, and policies are as varied as are the number of employers. Some companies allow for the “occasional and limited” use of the web or smart phones, while others strictly prohibit any personal use while clocked in. Still others encourage the use of social media during the work day in order to promote the employer on the web. Policy regarding discipline in the event of the employee’s failure to comply with the communication policy is also addressed (or should be addressed) in the handbook, and given that most states here adhere to “at-will” employment, dismissal can take place if the offense is deemed egregious enough.
• Portugal: In Portugal the situation is similar, it can lead to justified dismissal; many companies block access to the web, especially to social media sites to monitor, or rather, avoid the monitoring of such activities. Yes, this should be a company’s policy, the government has nothing to do with it, but labor laws are made for some purpose.
• India: No such law in India. Most companies have their own policies about what sites can be accessed and what cant be accessed. Accordingly the company firewall stops one from surfing certain / all websites, depending on company policy. Software companies and banks are very strict about their internet usage policies. Legal and accounting firms follow. Most of the others are very lax with internet usage, sites visited, etc.

My initial anger appears justified. Legal commentators from all over the world are indicating that individual companies should determine their own ‘fair use’ policy for Internet use and that this kind of detail has no place in law. Employment law does need reform in Brazil, but meddling in the wrong areas could make things even worse – not better!

IT Decisions will gather further legal comment from inside Brazil this week, but if you are working in Brazil and you want to comment on this story in Portuguese then check out this TI Especialistas discussion - we are keen to find out what you think.

Photo by Chris Martin licensed under Creative Commons

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