A French man referred on his Facebook wall to a “club des néfastes“. That’s hard to translate; I’ll volunteer “circle of harm”, “band of evildoers”, or “toxic club”.

The French man was referring to his boss and the HR chief of the company he worked for. Should this be a firing offense?

One of the man’s Facebook friends “liked” the status update, another commented “welcome to the club”. Should these be firing offenses?

For the employer, Alten, they were, and the employees were terminated for gross misconduct. Alten described their action as “disparaging the firm” and “inciting rebellion”.

A French labor court recently heard the case, but was deadlocked in reaching a decision. The case has drawn considerable media attention, so some background and context seemed useful:

  1. For more than twenty years, France’s highest judicial court (the Cour des cassation), has repeatedly affirmed employees’ rights to self expression. In the leading case (the Clavaud case, decided 22 April 1988), a factory worker had been terminated after he spoke with L’Humanité, a communist daily, and expressed a bleak view of his employer. The court not only acknowledged the worker’s right to expression, it also opened a door to a powerful remedy. Specifically, the court annulled the termination, paving the way for possible reinstatement. This remedy is exceptional, the general rule in French labor disputes being money damages. The high court has affirmed its position repeatedly over the years (French economic daily Les Echos has provided a list of the cases).
  2. This having been said, French employers do tend to insist upon a deferential posture towards “hierarchical superiors”. (I hear echoes of the ancien régime and a moralizing tone in this common expression.) And some French employees spend astonishing amounts of time and effort to question and resist their bosses. A print-out of a screen shot offers an employer evidence of what may be the visible tip of an iceberg of noncooperation. Terminating one employee –even on legally shaky grounds– might set an example for others, offering the employer a chance to communicate about desired or expected behavior.
  3. At-will employment doesn’t exist in France. As a baseline rule, an employer can terminate an employee only for cause. (An employee can terminate the relationship for any reason, including no reason, on notice.) Sometimes, an employer will be surer in its desire to terminate an employee than in the possible cause for termination. Labor matters tend to be litigious in France (as are settlements of labor disputes), so uncertainty about cause need not hinder a termination. Simply put: the cause advanced by an employer sometimes sounds so implausible (“inciting rebellion”) that an objective hearer might wonder whether at-will employment wouldn’t be preferable, after all.
  4. Labor disputes in France are common. They are heard by specialized courts with elected judges, half of whom are chosen by employers and half by employees. In this case, the judges deadlocked. This need not signal a difficult case. For example, judges can differ on remedies or the amount of damages to award. When there is a deadlock, an additional judge, a career civil servant, joins the deliberations; with an odd number of judges, a majority decision is ensured.
  5. Because there are many labor disputes, French labor courts have heavy dockets. In this case, employees terminated in December 2008 had their case heard in 2010 (although it will not be decided until the second half of 2010). Two years is a long time. France does not permit labor disputes to be arbitrated. Settlement is possible, but hard to predict. In this case, maybe he passage of time makes employees more open to settlement; or maybe it simply embitters employees, steeling their resolve to go to court. Likewise, maybe the employer seeks to postpone a final decision as long as possible; or maybe it has a policy to settle labor disputes only after a trial-level court has ruled against it.

Facebook is a red herring –a distraction– in this case. This has not prevented some commentators from using the story as a cautionary tale about the “dangers” of social media.

For my part, I think the case is interesting because of the five points mentioned above. Each point merits fact-finding, research, and careful development, not feasible with the limits of a blog and the limitations of this blogger.