Digital Era Presents Thorny Legal Issues for Employers

The rapid advance of smartphones, laptops and other digital devices has radically changed how work is getting done across the globe. Employees can now work from anywhere and collaborate with colleagues at any time of day or night as long as they have a reliable internet connection.

While these devices can help employers cut costs and boost productivity, they also create a host of potentially thorny legal issues that didn’t exist in the pre-digital era. These challenges were highlighted in a recent webinar presented by international law firm K&L Gates, which offered the following tips.

Don’t invade workers’ privacy. It used to be easy to monitor employees when everyone worked on company provided-computers, but the advent of employee-owned digital devices has introduced a new level of complexity. Employees now have a greater expectation of privacy when using their own devices, and employers seeking to remotely monitor their employees’ must tread carefully.

"How do we know that when an employer is remotely monitoring an employee it is only accessing work-related content on the employee’s device?" cautioned Donald Dowling, a partner in the firm’s New York office. "What if the monitoring enables the employer to look at personal e-mails on that same device too?"

Develop social media policies. The rise of digitalization in the workplace has made it essential for companies to have social media policies. "In the U.K. and other parts of Europe we are seeing that if you want to dismiss employees for comments they posted on social media you are never going to be able to win your case in court if you don’t have a social media policy in place," said Paul Callegari, a partner in the company’s London office.

And while it is always important to keep company policies current, it may be even more critical in the case of social media as this is an area that changes rapidly. "For example, it wasn’t so long ago that people were absolutely banned from using Facebook at work, and now in some circumstances they are being encouraged to do so," Callegari said.

Be mindful of laws regulating work hours. Digitalization can pose particular problems in countries that have highly regulated work hours. In Germany, for example, employees must have an 11-hour rest break between two working days, which means if they are on a conference call until midnight they should not be allowed to start the next workday until 11:00 in the morning.

"What we see are that these types of issues are regularly ignored by companies, but they have to keep in mind that these are administrative offenses that could lead to legal trouble," said Nicolas Roggel, a Berlin-based partner at K&L Gates.

In Germany and France there has been a push to encourage employers to shut down their servers at the end of the work day so that employees cannot do their work after hours. But while doing so may be possible for companies that only have a local presence, it is not practical for companies with global operations, Roggel said.

Protect business data. Employers also may find it harder to prevent employees from taking confidential data when they leave the company. For example, it used to be common practice for sales directors to have all of their leads on rolodex cards, but now they are likely to have this information in their LinkedIn account.

If this is the case, the only way to stop employees from keeping this data is to make them sign a post-termination agreement. "We have written contracts which require employees to delete their accounts on LinkedIn," Callegari said. "Employees generally don’t like it when we include that, but so far none of these contracts have been deemed to be invalid."

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