In an earlier article, we examined in detail the extent to which employers may advertise and support specific candidates or candidate lists. Employers are not obliged to remain neutral.
However, when candidates or unions advertise for elections, this can quickly have an impact on the employer’s interests. This may concern both the content of the election advertising, and its distribution and scope.
Election advertising via e-mail and chat
Naturally, election advertisers regard the company’s IT systems as the perfect tools for reaching eligible voters. But are employers required to tolerate the use of business e-mail addresses or the company chat software for this purpose?
The constitutionally protected freedom of activity must be observed in the case of trade unions represented at the company, and also their candidates. This protection also covers election advertising for a works council election. Nevertheless, this does not grant the union a right per se to use the company’s IT infrastructure. Although Section 20 (3) of the Works Constitution Act (BetrVG) requires employers to bear the costs of the works council election, which includes providing the election committee with the necessary resources to prepare and hold the election. This does not, however, refer to the costs of election advertising. Yet, recent case law of the Federal Labor Court states that a possibility of use must be granted at least if the employees cannot be adequately reached by other means. In the remote working and home office era, this can definitely apply. If unions are granted access of this nature, the employer would be obliged to grant the same access to non-union candidates. Otherwise, this would violate the principle of equal opportunity.
Generally, the distribution of flyers in the workplace for the purpose of election advertising is permitted within the workplace. However, company operations may only be disrupted to the extent necessary. This means that flyers may not be distributed during the recipients’ working hours (Federal Labor Court, decision dated January 26, 1982 – 1 AZR 610/80). Breaks and the time before the start or after the end of the shift must be used for this purpose.
The employer may be required to provide a table for presenting advertising flyers, for example. However, it is not the supervisors’ task to forward election advertising to employees (Federal Labor Court, decision dated October 25, 2017 – 7 ABR 10/16).
The employer is entitled to set rules regarding posters (Lower Saxony State Labor Court decision dated September 12, 2011 – 13 TaBV 16/11). Employers may also prohibit the use of posters. However, the company must enable and permit election advertising via a bulletin board, for example. In any case, “wildly putting up posters” is prohibited. For example, election posters may not obscure employer information, safety notices, or the election posters of other candidates. It is also not necessary and, therefore, impermissible, to blanket the company with election advertising. Placing election advertising in suitable locations where employees can obtain information is sufficient. A bulletin board at the entrance to the cafeteria is one example. Safety at the company may not be compromised under any circumstances.
Election advertising outside working hours
Candidates are not permitted to carry out election advertising during their paid working hours, as this generally involves a significant disruption to the company’s operations. However, election advertising outside working hours is reasonable, such as when election candidates distribute flyers to their colleagues during breaks or before or after their working hours.
Union access rights
It is important to make a distinction regarding the extent to which trade union representatives from outside the company may enter the company for the purpose of election advertising. External trade union representatives have a right of access to the company if they intend to advertise for a trade union election proposal (Section 14 (3) of the Works Constitution Act (BetrVG)). Conversely, if the trade union supports an election proposal from the employees, it does not have a right of access for the purpose of election advertising. The unions are also required to restrict their election advertising to outside of employees’ working hours. Naturally, union representatives are not entitled to put undue pressure on their members (or even other employees), as this would represent prohibited interference in the election.
Election advertising events at the company
In view of the fact that election advertising by trade unions for their own candidate lists is constitutionally protected, election advertising may also be carried out by means of lectures and events. However, employers are neither required to provide a corresponding location nor to enable events like these during working hours.
The prohibition regarding influencing and obstructing elections is a general prohibition. Therefore, no one may obstruct or unlawfully influence the works council election. As such, the prohibition not only applies to employers and their management personnel, but also to trade unions, works councils, the election committee itself, as well as (competing) election candidates (State Labor Court Munich, decision dated February 27, 2007 – 8 TaBV 89/06).
Nevertheless, Section 20 (2) of the Works Constitution Act (BetrVG) does not prohibit all election interference, but rather only interference by inflicting or threatening disadvantages or by granting or promising advantages. Normal advertising for the works council election does not – yet – fulfill this requirement. Exaggerating certain positions and viewpoints is commonplace during election campaigns, and not every non-objective propaganda can be classified as prohibited election interference. Accordingly, criticism of the employer or other election candidates is fundamentally permissible. However, election propaganda must not be defamatory, slanderous or even insulting. In addition, if the propaganda reaches the level of general incitement or actually prevents candidates from running for election, the permissible level has been exceeded (Lower Saxony State Labor Court, decision dated June 16, 2008 – 9 TaBV 14/07).
Employers’ defensive rights
Violations of Section 20 (1) and (2) of the Works Constitution Act (BetrVG) may lead to the election being contested. Furthermore, major violations may even result in the election being declared null and void. Major violations can also be subject to legal action pursuant to Section 23 of the Works Constitution Act (BetrVG). However, this only applies to violations by the incumbent works council.
Moreover, the employer does not have cause to an injunction against a works council due to prohibited election advertising in accordance with Section 20 (1) and (2) of the Works Constitution Act (BetrVG) according to the Federal Labor Court’s disputed legal opinion. However, employers are entitled to injunctive relief under civil law against candidates if the election advertising is directed against the employer and is defamatory, for example. In this case, the boundaries of permissible election advertising have been exceeded. Election candidates share these rights. In view of the urgency of the issue, a preliminary injunction is the only reasonable option.
If companies approve spaces for putting up election posters or displaying flyers, and posters are nevertheless put up or flyers distributed in non-approved areas, the employer is probably justified in removing them.
The boundaries between permissible and prohibited election advertising are not always clear. Employers are neither required to finance election advertising, nor to tolerate unauthorized election advertising.