Paul from Paris

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.

L’Etat, c’est moi. Rail lines that converge on Paris. Anyone who studies France encounters, early on, evidence that points to a strong central state. This is often presented as one of the features that make France, France.

A corollary of this proposition would be mistrust of civil society in general, and of citizen initiatives not involving the state, in particular.

Why is this so?

As the days grow longer and the evenings warmer, people in France like to gather for Spring festivals, whether formal or informal.

The informal gatherings have, in the eyes of the press, given Facebook a bad reputation. Informal weekend gatherings have occurred all over France, mostly in cities with universities and big student populations: Lyon, Nantes, Montpellier. The gatherings are promoted via a Facebook group and held in public. They are open to all but orchestrated by no one in particular.

Facebook groups had announced a similar gathering this weekend, in the Champs de Mars (by the Eiffel Tower). The reaction by the public authorities grew steadily over the week: ban the event; ban all such gatherings; arrest and interrogate the organizers (they turned out to be teenage girls; no charges were brought); alcohol having already been forbidden in the park, new ordinances were enacted to prohibit –for the weekend– glass containers and the transport of alcohol around the Champs de Mars; busloads of riot police were called in; and passersby were frisked.

Plenty of people did enjoy the park on a warm summer evening. Malfeasance rivaling Sodom and Gomorrah did not occur. The authorities declared victory.

For this observer, what really troubled the authorities was the lack of state supervision.

I’ve seen other events in Paris, such as the Technoparade or Gay Pride marches, that do have official organizers and state sanction. I wouldn’t dream of banning them, even though I’ve witnessed, in my quiet neighborhood:

• mountains of detritus, including broken glass, after municipal sanitation workers have cleaned up, presenting a risk, especially to dogs and small children;
• participants who are inebriated or drugged to the point where they cannot walk or speak;
• misbehavior best described as riotous: damaging bus shelters, removing review mirrors from cars, vandalism (leading the Vélib rental bike service to encase cycles and equipment near my apartment in a plastic protection).

State-sponsored initiatives are common this time of the year in the south of France. Examples include the Gruissan Festéjades or the Nîmes Féria. These events take place over a long weekend, and call upon significant state resources. There’s even bullfighting, which many consider to be animal torture.

The World Health Organization just condemned binge drinking. Of course, binge drinking –consuming a lot of alcohol in a little time in order to induce drunkenness– has been around for a while. And, of course, WHO adopted a non-binding resolution, so as not to force its members’ hands.

In France, binge drinking has been an oft-cited reason to ban so-called apéros Facebook, informal gatherings in public parks that are announced through social media, such as Facebook pages.

French authorities have no problem with apéros. In fact, the French state pays people abroad to host and hold French-themed cocktail hours. France is full of cafés and bars. In fact, there are citizen groups that petition to “save” cafés from closure (in the sense of going out of business). There are plenty of places in France to buy or to have a drink.

French authorities likewise seem unconcerned by drinking in public, or even public drunkenness.

What seems to generate concern are: young people, especially in groups.

I like to think of myself as young or youthful, but the French authorities certainly aren’t talking about me. They’re talking about teenagers and students. I teach, so I have regular contact with hundreds of people in this age bracket. Admittedly, I don’t teach rabble-rousers. But those whom I get to know seem responsible enough to choose, themselves, whether and how much to drink.

This having been said, I’m prepared to hide my libertarian stripes and concede dangers to public health and safety presented by drinking, especially bridge drinking.

But I would like to know more about changing patterns in alcohol consumption in France: data seem to show a fall in the number of those who drink regularly in smaller quantities (a glass of wine every evening with dinner); and a rise in the number of those who drink episodically in large quantities (binge drinkers who consume cocktails made of vodka and Red Bull).

And I would like to hear more from binge drinkers, especially about their motivations: what is it, precisely, that they find so seductive about drunkenness?

Some people feel threatened by Facebook and oppose it strongly.

In France, where I live, I witnessed this demonization recently. It came from the Alsatian town of Ribeauvillé, in the midst of a winemaking region.

The action occurred at the Ménétriers middle school. Several students –all are minors, probably age 11 to 14– posted to or visited Facebook group pages about the Ménétriers middle school.

What did the posts say? I don’t know, and I haven’t seen a description by a journalist or authority, but someone felt that posts or pages insulted school teachers or staff.

The school’s principal, Alain Batio (reportedly the subject of an “anti-Batio from Ménétriers” page or post) decided to act. He:

• Launched an investigation to figure out which students were involved with the group (of which, reportedly, no student was an administrator);
• Suspended several dozen students for a period of one day to one week;
• Required students to write an essay, presumably confessional;
• Threatened disciplinary action, in addition to suspension and essay-writing;
• In his officially capacity, filed a criminal complaint for defaming civil servants; the local gendarmes are investigating, and convictions could result in fines of up to € 45,000;
• Sought to have offended pages removed from Facebook, apparently with success.

The gravity of an insult depends partly on the disposition of its recipient, but let’s assume the worst: posts to the Facebook pages falsely described specific schoolteachers as incompetent or doers of morally reprehensible misdeeds. Are those libeled so sensitive, is their authority so precarious, to justify that those connected with the wrongdoing, directly or peripherally, face a full arsenal of school disciplinary actions, and criminal prosecution?

I would wish that juvenile behavior, by juveniles (age 11 to 14), not incite overreaction, especially from schools. I’m particularly troubled in this case by the haste with which the school principal called in law enforcement, making what he treated as a school issue also a law enforcement issue.

One would think that words injure less than blows, but in this case Facebook seems to have acted as a strongly aggravating factor.

This is strange, because school violence is perceived as a real problem in France: according to a Harris Interactive poll last month, 61% of those surveyed are concerned about their child’s safety at school; and 90% of those surveyed think that school violence has increased in the past ten years.

Two aspects set this violence apart from the Ribeauvillé Facebook scandal: it is directed against children, not adults; and it involves physical violence and bodily harm, not injury to honor or reputation. While one middle school worried about Facebook, others had to deal, in the same month, with young teens falling victim, on school premises, to knife attack. In one case, the sense of violation provoked by this violence was so great that teachers –responsible, adult teachers– exercised their “right of withdrawal”, not reporting for duty at school for several days becuse of the extent of the danger. (Arguably, protest motivated their action as much as actual danger.)