October 11, 2017
Authored by: François Alambret
The development of teleworking in Europe has increased the requirement for the protection of personal data. If those two subjects are complementary, they shall not overshadow the other aspects of working relationships’ digitalization.
- Teleworking Development
Teleworking did not wait for the emergence of the internet to exist but rather has undoubtedly been developed by the combination of the following: the progression in individual technological tools, the individualization of working relationships, and the expansion of urban centers and their resulting congestion.
First, encouraged by employees’ legal claims, companies have organized teleworking through collective agreements and charters (relating to IT or quality of work life), later recognized by trade unions at the European and national level (European framework agreement on telework of 16 July 2002 and the national inter-professional agreement of 19 July 2005). Lawmakers next supervised teleworking through the law of 22 March, 2012, 8 August, 2016 (the work law called “El-Khomri” law), and Macron’s orders, which are currently in the process of being promulgated into law.
This last legislative step aims at simplifying the use of teleworking, in particular through agreement or company charter by preventing parties from writing additional clauses within the employment contract (see article 24 of the order No. 3 of 31 August 2017 modifying the articles L.1222-9 and following French Labor Code).
The employer is no longer supposed to bear the cost of teleworking, which allows de facto the employee to use his/her own IT equipment.
- Personal Data Protection
As soon as teleworking emerged, it faced IT data protection issues. This constraint was also recalled by social partners within their first European (5th point of the framework agreement of 16 July 2002) and national agreement (article 5 of the national inter-professional agreement of 19 July 2005).
Thus, teleworking increases data protection risks in a structural and technical manner. Structural risks are due to the work organization system itself (which increases digital communication at the expense of direct and verbal communication within the company). Technical risks are linked to the fact that employees remain far away from companies’ IT services and are allowed to use their own IT equipment with the risks deriving from it.
Community legislation regarding data protection from 27 April 2016 (commonly known as GDPR (Global Data Protection Regulations)) notes the increasing digitalization of society as well as its new ways of working.
- Interdependence of Those Two Issues/the Role of the Company
These two subjects (teleworking and data protection) are supporting and encouraging each other. Data protection’s reinforcement offers the necessary guaranties to help develop teleworking.
Despite the legislative and community framework, key players of the company are still those who must handle and draw-up their own framework. They are the ones who must negotiate and write the collective agreement or the charter permitting the smooth set up of secured teleworking, in accordance with the new community legislation of 27 April 2016. They must also take into account all the impacts of digitalization: work length and the right of disconnection (which is essential in teleworking), digital access of corporate documents and company portals (labor exchange platform of the company or the group in case of reclassification research for economic lay-off or inability), electronic vote (dedicated to professional elections of the Social and Economic Committee and to potential referendum organized to approve collective agreements), training or inclusion policy enabled by digitalization (inclusion of disabled employees), digital work code, etc.
France’s Minister of Labour Madam Muriel Pénicaud was not wrong when placing her hopes in an inter-professional negotiation regarding that point. Some union federations (such as CFDT) are very open even though some others are still reticent in getting mobilized regarding those subjects.
Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their teleworking and data protection needs in Europe. If you or your organization would like more information on teleworking, data protection, or any other employment issue, please contact an attorney in the Labor and Employment practice group.