Intensive developments in modern technologies and increasing globalisation are affecting all areas of life, including that of work. This is work meant in broad terms, not only in terms of its performance, but also recruitment and the mutual relations of employers and employees. Where is this all leading us?
Artificial Intelligence in HR
One of the most overworked concepts in recent years is that of artificial intelligence. Our imagination quickens at the notion of a program endowed with an ability to operate independently. It is attracting interest not from engineers and scientists, but it is also taking ever greater root in popular culture. Technologies are appearing all over the world that are trying to introduce something akin to artificial intelligence into everyday use. These are still not solutions that can be called AI; nonetheless, the boundary is shifting the whole time. Consequently, new legal problems are arising that legislators around the world will have to resolve.
Automated solutions will have a huge impact on companies’ operations, including those of HR departments. One such technology involves systems that provide HR support at the initial stage of a recruitment process: mainly in the areas of searching and pre-selecting candidates. Technologies are coming into fruition now that are based on machine learning (bots), which are capable of holding initial interviews with candidates for jobs and of using the results to make selections.
This immediately prompts questions of possible discrimination and unequal treatment. Self-learning bots must be supplied with the largest possible amounts of data. But if the data contains inappropriate information, the bot may start rejecting candidates, using an unjustified (even perhaps unacceptable) criterion. The question then arises: who should be responsible in such a situation? There is no doubt, from a labour law point of view, that the responsibility for, say, discrimination in employment caused by an algorithm selecting discriminatory data, falls entirely on the employer.
Another doubt concerns the protection of job candidates’ personal data. How is it possible to relate the use of bots in recruitment to, for example, profiling or background screening?
Those behind such solutions still have much work ahead. What about a situation in which an employer that has “employed” a bot is not satisfied with a selection of candidates? Is it possible to exclude the human factor when making a final decision about employment? It would appear that live recruiters will still continue to have an important role, at least, at the final stage of selecting candidates, in particular when assessing their soft skills. However, robotic assistants are already dangerously encroaching on their positions.
In this context, a new challenge will soon present itself to legislators all around the world: the need to draw up legal regulations that will be adequate for the changing reality and that acknowledge the existence of (ro)bots in the workplace
Blockchain and smart contracts
A second very popular concept in recent years is blockchain. Without going into the details of the technology, one can generally say that it is a decentralised and distributed database with a very high level of cryptographic security. Once information has been entered into a blockchain, it can no longer be removed.
Some of the most interesting applications of the blockchain are smart contracts, namely automated contracts written in the form of software scripts.
So how can this technology be used in the general workplace environment? Many ideas exist and some have already reached implementation. For example, a certain Australian company has developed a portal using the blockchain and smart contracts for offering jobs. It operates very simply: a company with a need for a specific service (e.g. the design of a logo), prepares a smart contract, and a person who happens to be available (e.g. a graphic designer) joins the contract. The remuneration is paid automatically by the smart contract, once prerequisites have been met. Interestingly, payment takes the form of tokens. After completing the order, the freelancer may receive a recommendation that he or she can use to build a brand on the portal. Moreover, because the data is saved using blockchain technology, it cannot be falsified.
Another solution is a platform for verifying professional experience also using the blockchain. Its objective is to facilitate the work of HR departments, which will be easily able to check whether information that a candidate has provided is true. On the other hand, the website enables a person to generate a CV, the content of which is verified by the website team and confirmed in the blockchain – so that, once again, there is no possibility of interfering with the data.
In which direction will this technology develop? Can traditional employment contracts be replaced by automated counterparts? In the near future – probably not. Smart contracts’ possibilities are limited by the options offered by programming languages. Those do not currently match the possibilities that the traditional legal language provides. Nevertheless, one can certainly expect that such solutions will see intensive development and will increasingly impact the relationship between employer and employee.
BYOD meaning hardware
Since we have already mentioned software, which is increasingly interfering with the working environment, it is time to raise the issue of hardware. What does the abbreviation in the subheading mean? Many will have already deciphered it: Bring Your Own Device. Supporters of this worldwide trend are growing in numbers, among both employers and employees. Why is this so?
From the point of view of the employer, it definitely constitutes a saving associated with not having to buy a business laptop or phone. In turn, the employee gains the comfort of using his own equipment for work, which the employee knows and freely handles. Very often employers agree to participate in the costs of such devices, which is advantageous for the employees, while for the employer it is still a smaller expense than buying new equipment.
Of course, from a legal point of view, additional complications arise that are associated, for example, with regulating the use of private equipment for the work purposes. One also must not forget personal data protection: such equipment must meet safety standards, especially in the context of European regulations on personal data protection (GDPR).
Unfortunately, BYOD may pose a threat to the security of an employer’s entire data, not just personal data. The range of threats is broad: starting from the trivial situations of an employee losing a smartphone or logging in to a free hotspot (e.g. at an airport) and ending with organised cyberattacks.
Unfortunately, many mobile workers do not follow the basic rules of cyber security. It is enough just to connect to a hot spot at a restaurant, or an airport and to check what is being made available by the other devices that are logged on. We know from our own experience that, apart from a default sharing folder, people often have other folders available with, for example, official documents, or even system files. One does not have to be an experienced hacker to take advantage of such a thoughtless loophole.
Employers who agree to their employees’ devices being used for private purposes, must ensure adequate security at the physical (e.g. fingerprint reader) and software (e.g. firewall, anti-virus, data encryption) levels. The employer may also ask the IT department to periodically check and update security on those devices. All these issues should be reflected in the employer’s internal documentation (policies, procedures or instructions). The documentation should state the activities that are and are not acceptable to the employer, the steps that must be taken to secure data, and what to do in the event of any violation.
Blurring of the home–work boundary
Employees use their own equipment particularly often, if working remotely from the employer’s office. Remote working is, in fact, continuing to gain in importance, and not just because of the savings that employers achieve if employees use their own equipment. Remote working allows employers to save other costs, associated above all with renting a large office or administration premises. In turn, employees get an opportunity to reconcile work with their private lives (work-life balance).
Undoubtedly, remote working is particularly significant among employers who are only just entering new markets (sometimes covering a whole jurisdiction) and employ only a few people or even only one at the new location. However, such an arrangement may cause many practical and legal difficulties.
In addition to the above need to secure equipment against unauthorised access to data, employers must also remember about technologies that enable monitoring presence at work, and the time and efficiency of employees, so that remote work does not turn out to be a trap associated with unreliable employees. It is therefore worthwhile adding, in advance, appropriate provisions to employment contracts or internal regulations.
New trends on the labour market show that employers are departing from renting large exclusive office spaces and are renting mixed-use properties, where some premises are office space, and others residential. Despite the undoubted numerous advantages that this has (e.g. employees do not waste time commuting), it may adversely affect employees’ psyche in the long run. This is because the home-work boundary disappears. The lack of a clear boundary may impact employees’ effectiveness caused by tiredness with feeling continually available to the employer. Therefore, solutions intended to increase employees’ motivation, may actually turn out counterproductive.
Who is the employer?
Mobile working is also an inseparable part of the professional life of employees of large international organisations, who often have to work for many companies in the group. This applies particularly to those in managerial positions. CEOs, CFOs or regional managers are responsible for the work of many entities, often in different jurisdictions. Such arrangements may cause a blurring of the traditional concept of an employer.
For example, there may be doubts as to who (which organisation) is responsible for reviewing the employee’s performance at work, or at least, which regulations and circumstances (concerning which entity) should be taken into consideration when terminating that employee’s employment contract. On the other hand, employees that work for international corporations expect benefits at least at the same level as at the other group companies with which they work.
Therefore, employers face the challenge of having to adjust internal regulations to changing realities. In particular, employers must bear in mind that it may prove insufficient just to introduce a regulation at the group level. The effectiveness of the given regulation must be assessed from the perspective of the local jurisdiction in which the employee has the contract. It is also important to properly organise the work of such employees, so as to avoid the risk of an employee raising a claim of employment with a group entity other than the parent employer.
Most of the above trends boil down to the inevitable progress of digitisation in each area of life. While technological progress assists employers and employees, it is followed by threats of attacks from cybercriminals.
Cybersecurity offences cost the global economy $100 billion a year (statistic from Heimdal Security) and it is expected that this amount will rise. We are observing ever more attacks – including on the servers of law firms. One surely does not require any explanation of the consequences of a theft of data relating to clients, transactions, or ongoing proceedings.
Unfortunately, the threats are not only from criminals, but also from employees themselves. The statistics that a very large percentage of employees, who have been dismissed, take important data with them, are disturbing. In the case of law firms, this may involve, for example, model documents, reports or even clients’ details. Employers must take this into account and deploy solutions that protect data from being taken by employees. For example, one can use software that notifies (e.g. by e-mail) an appropriate person at the firm that files are being copied from a given computer to external storage.
IBM’s research suggests that about 20% of workplace safety violations are caused by errors made by careless employees. Therefore, employers not only have to protect themselves against external attacks, but also attend to what is happening within their organisations.
The blockchain mentioned above carries a very high level of security that is impossible to break using modern technology and computing power. Perhaps this technology will become dominant in the near future with respect to securing data, particularly where employers are concerned. On the other hand, one cannot rule out that developments in quantum computing with its extraordinary computational power will cause the collapse of blockchain as the safest technology. But this is a tale of the future.
Technology’s extremely dynamic development will not omit any area of life, including the labour market. In observing technologies and trends that are already operating (whether well or badly), we can expect that artificial intelligence will develop dynamically and take over certain simple, repetitive activities. The development of blockchain technology is also inevitable, especially in the context of smart contract possibilities. Lawyers must keep up with technology, because new solutions will bring with them new hitherto unknown legal problems.
Employers who have mobile and remote employees will also face numerous challenges. In such cases, employers must take into account appropriate solutions that are not only technological, but also organisational and legal, so that solutions, which were intended to serve employers and employees, do not bring about outcomes other than intended.
Agnieszka Godusławska, adwokat, Michał Nowak, Employment Law practice, Wardyński & Partners
This article first appeared on the website of the Employment and Industrial Relations Law Committee of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © 2018 International Bar Association