‘Checklist Series’ – Employment in the Digital Age

Welcome to our new Checklist Series segment of Vision in the Workplace.

This 4 part series will offer employers an insight into various risks encountered in the modern workplace and provide tips on how best to mitigate these risks.

In this first checklist, we examine why the following are important areas to consider to ensure employers are better protected in the digital age:

  1. Robust Surveillance Policies  ✔
  1. Contractual Protection of Confidential Information & Intellectual Property  ✔
  1. Social Media Policy  ✔
  1. Initiatives to combat fragmentation  ✔

Robust Surveillance Policy – ensure new technologies are captured

Thanks to the never-ending emergence of new technologies, there are increasingly more and more ways for employers to monitor their employees.

In NSW, the Workplace Surveillance Act 2005 (NSW) (the NSW Act) governs how employers can conduct surveillance of their employees in an appropriate and lawful manner.

While Employers should now be abreast of the NSW Act and the obligations it creates – particularly around providing notice of surveillance – it is important to ensure your policy contemplates new technologies.

For example, it is becoming commonplace for employers to require their employees to download certain mobile apps – such as payroll/HR apps, apps for internal communications, or apps to log employee hours. It is important to consider whether any of these apps intentionally or inadvertently track employees using GPS and whether, as a result, the employer may have certain disclosure obligations under the NSW Act.

As work becomes more flexible, we are also seeing employers implementing ‘bring your own device’ practices and policies. If employees are using their own devices, whether at the workplace or while working remotely, employers should also consider whether any inadvertent monitoring might trigger disclosure obligations and whether any privacy issues may also be at play.

Contractual Protection of Confidential Information & Intellectual Property

In the cloud age, employers are more susceptible to the misuse of confidential information or intellectual property than ever before. For that reason, it is vital that employment contracts contemplate protection of that information and clearly:

  • Define “confidential information” and “intellectual property”;
  • Clarify who owns “confidential information” and “intellectual property”;
  • Place parameters around the use and distribution of “confidential information” and “intellectual property”;
  • Set out a clear procedure for the irretrievable removal of company “confidential information” and “intellectual property” from employees own devices that they may have downloaded/uploaded onto personal devices or accessed through personal emails during the course of employment; and
  • Set out clear limits on the use of confidential information and intellectual property post-employment.

Social Media Policy

The digital age has also necessitated the implementation of social media policies.

Of course, it will be interesting to keep an eye on any developments with the Israel Folau case, which may impact the extent to which employers can encroach on employees’ personal lives.

In any event, at the very least, employers should implement a social media policy that sets clear expectations for social media use during, and (to the extent appropriate) outside of working hours.

Any social media policy should:

  • Place limits around use (including inadvertent) use of posting confidential information;
  • Clarify how, if at all, employees should represent the company online;
  • Prohibit disparaging comments about the company or other employees online; and
  • Clearly specify the consequences of any breach of the policy.

Initiatives to Address Fragmentation

Finally, as the digital age allows us to work from anywhere, it is important to introduce initiatives to combat fragmentation.

While remote work can reduce overheads and keep employees happy, it also fragments the workplace, which can be fatal to engagement, communication, storage of information, employee satisfaction, and ultimately the bottom line.

This is an often overlooked casualty of remote work, which an employers’ HR function should proactively address. Fragmentation can be addressed by:

  • Clear check-in policies and procedures with remote workers;
  • Periodic team Skype or hang-out meetings to ensure engagement with remote workers;
  • Periodic face-to-face team events;
  • Ensuring clear reporting and communication lines; and
  • Ensuring policies set out clear points of escalation.

If you have any queries about ensuring your company is better protected in the digital age, please don’t hesitate to contact Nick Stevens, Jane Murray or Angharad Owens-Strauss.


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