What's your status? Digital technology and employment Wednesday 20 March 2013

Agenda

08.45am Welcome and introduction

Social media developments in the UK, Germany and Spain

Melanie Lane, Manteo Eisenlohr and Daniel Cifuentes, Partners, Olswang LLP

Cloud solutions and cross-border data transfers

Ross McKean, Partner, Olswang LLP

International employee competition in a digital world

Catherine Taylor, Partner, Olswang LLP

Remote working - navigating the legal maze

Melanie Lane, Manteo Eisenlohr and Daniel Cifuentes, Partners, Olswang LLP

09.45 Q&A session

Digital Employment Survey

• Do you regard employee use of digital media, such as internet or internet-based telecommunications and social media, to be crucial to your business in 2013?

• Have you considered whether any restrictive covenants in your employees' contracts remain fit for purpose in light of the increasing use of digital technology?

• Do you allow employees to work from home using digital media?

• If so, do you take any precautionary measures to ensure the security of business critical data and compliance with data protection laws?

• Do you use, or plan to use, the cloud to store employee data?

• Do you monitor the working hours of employees working remotely?

• Do you allow employees to switch off mobile devices outside of working hours?

Digital Employment Survey

• Do you regard employee use of digital media, such as internet or internet-based telecommunications and social media, to be crucial to your business in 2013?

• 88% “Yes”

• Have you considered whether any restrictive covenants in your employees' contracts remain fit for purpose in light of the increasing use of digital technology?

• 44% “Yes”

• Do you allow employees to work from home using digital media?

• 88% “Yes”

• If so, do you take any precautionary measures to ensure the security of business critical data and compliance with data protection laws?

• 74% “Yes”

Digital Employment Survey

• Do you use, or plan to use, the cloud to store employee data?

• 50% “Yes; 25% “No”; 25% “Don’t Know”

• Do you monitor the working hours of employees working remotely?

• 79% “No”

• Do you allow employees to switch off mobile devices outside of working hours?

• 10% “No”

Social media developments in the UK, Germany and SpainMelanie Lane, Manteo Eisenlohr and Daniel Cifuentes, Partners, Olswang LLP

Social media – latest developments

• Opportunities and challenges for employers

• Where does professional life end and private life begin?

• Comments more likely to be public

• Postings which reveal misconduct / or unwelcome views

Social media – leading UK cases by March 2012

• Only ET level decisions – not binding

• However, general themes:

• Employers can generally rely on postings which reveal misconduct (Gill -v- SAS Ground Services)

• Having clear social media policy assists employers (Crisp -v- Apple; Preece -v- Wetherspoons; Lerwill -v- Aston Villa)

• BUT usual unfair dismissal principles apply – fair procedure, range of reasonable responses, consistent treatment (Bates -v- Cumbria County Council; Stephens -v- Halfords; Whitham -v- Ventura; Taylor -v- Summerfield)

• Common for employees to run privacy/freedom of expression arguments – but ETs not sympathetic where risk of damage to employer’s reputation (Pay -v- UK; Gosden -v- Lifeline Project; Crisp -v- Apple; Teggert -v- Telecity)

Privacy and freedom of expression

• ECHR:

• Article 8: “Everyone has the right to respect for his private and family life, his home and his correspondence”

• Article 10: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”

• But qualified rights – breach may be justified on various grounds including protection of the reputation or rights and freedoms of others

• No direct effect, but interpretation

Social media – latest case law developments

• Employment Tribunals consistent approach (Barnes & Carter -v- Greenacres School; Flexman -v- BG Group)

• Comments on Facebook as part of ongoing discriminatory act (Novak -v- Phones4U)

• BUT High Court more sympathetic to freedom of expression arguments? (Smith -v- Trafford Housing Trust)

Social media – other developments

• Paul Chambers

• New guidelines on prosecution of offences committed via social media

Crap! Robin Hood Airport is closed. You’ve got a week

and a bit to get your shit together otherwise I am

blowing the airport sky high!!

Cloud solutions and cross-border data transfers Ross McKean, Partner, Olswang LLP

The old world…

…the Cloud

UK Germany

Extensive customisations complex coding

Large maintenance team

Servers for each country – local

customised applications

Servers for each country – local

customised applications

UK Germany

Single line of code

Multiple configurations supportedAll countries access the same system

Small cloud management team

Upgrade costs$$$$$

Lower upgrade costs $

Compliance checklist

• Multiple data controllers?

• Fair and lawful processing (first principle)

• Transparency requirements (check handbook)

• Need to ensure that processing is justified. Consent? Legitimate interests?

• Notification / prior approval requirements with works councils and regulators?

• Security: need to ensure appropriate technical and organisational measures are taken to prevent unauthorised or unlawful processing of personal data (seventh principle). Check supply chain – security is only as good as the weakest link.

• Consider LEA access (e.g. Patriot Act) to ensure compliance with the DPA

• Data retention for no longer than necessary (fifth principle)

• International transfers: need to ensure an adequate level of protection for personal data exported outside of the EEA. Safe harbor doesn’t work for all countries.

International employee competition in a digital worldCatherine Taylor, Partner, Olswang LLP

Digital technology and employee competition - agenda

• Overview of employee competition protection in the digital world

• International issues

• Practical points to guide you when formulating your approach

• Policy considerations

Digital technology and employee competition – the law

• During employment

• Implied duty of fidelity

• Express terms

• After employment

• (Limited) implied duty in respect of confidential information

• Database rights

• Express terms – post-termination restrictions

Digital technology and employee competition – the law

• Social media = (fairly) new media – the law must adapt

• Traditional concepts in a new light

• Express terms/policy important

• The international dimension

Digital technology and employee competition – confidential information

• Lists of connections may be confidential information BUT … “in the public domain” and practical issues

• Nonetheless include in the definition of confidential information

Digital technology and employee competition – confidential information

• Copyright and Rights in Databases – European law

• Data which is accessible electronically arranged in a systematic or methodical way

• Substantial investment

• During the course of employment

• Europe wide

Digital technology and employee competition – the international dimension

• Digital technology – no respecter of national boundaries

• Where can the employer sue?

• Where the employee is domiciled

• Jurisdiction agreements much less effective

• New employer? Where they are domiciled or where harm occurred

• What law applies?

• Contract claims – express term, or law of the country in which or from which the employee works, or where their employer is based

• Other claims, e.g. inducing breach of contract – law of the country where the damage occurs

Digital technology and employee competition – practical points

• What is your policy on use of technology / social media for business purposes? Dictates whether you are prescriptive or take a more relaxed approach

• Manage business’ expectations – not possible to stop an ex-employee having a business social media page

Digital technology and employee competition – policy considerations

On commencement:

• Specify expressly who owns connections/followers?

• Take practical steps to reinforce on joining:

• New/upgraded company branded social media page and/or

• “Snapshot” of existing social media page

• Only allowed to use certain social media sites for business purposes

• Twitter handle not personal but company?

• Require passwords to be notified to employer?

• Specify contractual choice of law

Digital technology and employee competition – policy considerations

During employment:

• Emphasis in policy on employer’s investment and work-related use to capture connections/followers under Database Rights

• Consider whether contacts should:

• Be funnelled to business related social media site which you can control

• Also added to employer’s central database – practical issues

• Monitor social media usage via I.T. and use of corporate moles

• Remind users of the social media policy at regular intervals

• Track employees who move internationally

Digital technology and employee competition – policy considerations

On termination:

• Consider providing for:

• Removal of company connections/followers; and/or

• Closure of company account; and/or

• Transfer of contact details to the employer; and/or

• Provision of password; and/or

• Agreed post/tweet about the employee’s departure

Digital technology and employee competition – policy considerations

On termination:

• Good post-termination restrictions:

• Categorise connections/followers as confidential information

• Define solicitation

• Ensure there is a no-dealing clause

• Do not include “all connections”

• Corporate mole post-termination?

• Creative thinking should there be an international aspect

Remote working – navigating the legal mazeMelanie Lane, Manteo Eisenlohr and Daniel Cifuentes, Partners, Olswang LLP

Remote working – navigating the legal maze

• Multiplicity of (often familiar) issues arising from remote working:

• Home working

• Working time

• “Bring your own device”

• Jurisdiction issues

Remote working – home working

UK•Statutory right to request flexible working

•Discrimination claims

•Increasingly common – although UK employers still uncomfortable dealing with requests

Germany? Spain?

Remote working – working time

UK•“Working time” includes travel time

•Monitoring working time

•The UK opt-out

•Rest periods and breaks

Germany? Spain?

Remote working – “BYOD”

UK•Increasingly popular

•Cost savings -v- security and data protection issues

•New ICO guidance

•Importance of clear policy

Germany? Spain?

Remote working – jurisdiction issues

UK• UK Employment Tribunals jurisdiction if one or more Respondents

resides or carries on business in England and Wales / if in civil courts cause of action would have arisen wholly or partly in England and Wales

Remote working – jurisdiction issues

UK• Employees with “sufficiently strong” connection with Great Britain

• Where UK employment law giving effect to directly effective right derived from EU law, territorial scope of domestic law should be construed to give effect to EU-derived right

• Contract governed by foreign law, but UK Employment Tribunals have jurisdiction

Germany? Spain?

Questions?

What’s your status? Ihr aktueller status? ¿Cuál es tu estado?

For more informationplease contact:

Melanie Lane+44 (0)20 7067 3653 melanie.lane@olswang.com

Ross McKean +44 (0)20 7067 3378 ross.mckean@olswang.com

Catherine Taylor+44 (0)20 7067 3588 catherine.taylor@olswang.com [7138852]

Manteo Heikki Eisenlohr+49 30 700 171 159manteo.eisenlohr@olswang.com

Daniel Cifuentes+34 91 187 1922 daniel.cifuentes@olswang.com