International employment latest digital e mployment issues melanie lane and karine audouze
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International Employment – latest Digital E mployment issues Melanie Lane and Karine Audouze. Introduction. Digital employment seminar – March 2013: Latest social media cases and legislative developments Home working and working time “Bring your own device”

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International employment latest digital e mployment issues melanie lane and karine audouze

International Employment – latest Digital Employment issues Melanie Lane and Karine Audouze


Introduction

Introduction

  • Digital employment seminar – March 2013:

    • Latest social media cases and legislative developments

    • Home working and working time

    • “Bring your own device”

    • Jurisdictional issues arising from cross border working

  • Agenda:

    • Brief update: UK, Germany and Spain

    • Facebook and BYOD in France – recent case law developments

    • European data protection reform


Digital e mployment social media

Digital Employment – social media

  • No significant recent social media cases in the UK

  • General themes therefore remain:

    • Employers can generally rely on postings which reveal misconduct

    • Having clear social media policy assists employers

    • But usual unfair dismissal principles apply

    • ETs not sympathetic to privacy/freedom of expression arguments if risk of damage to employer’s reputation


Digital employment social media

Digital Employment – social media

Recent Facebook case law in France

  • Until recently, Facebook viewed as public arena whatever the privacy settings

  • So, as in the UK, French employers could rely on postings which reveal misconduct

  • Freedom of speech as a union member was no defence

  • New approach by the Civil Chamber of the French Court in April 2013: a FB profile is not public hence actions of an employee are in his/her private sphere


Digital employment social media1

Digital Employment – social media

  • October 2013, Spanish Constitutional Court decision:

    • Permissible to monitor company provided email and phones, even if no prior notification

    • Employer justified in firing employee whose breach of confidentiality revealed by such monitoring

    • Contrary to previous Supreme Court doctrine requiring prior notification of monitoring


Digital employment byod

Digital Employment - BYOD

  • Increasingly popular in UK, Germany and Spain

  • Cost savings v security and data protection issues

  • UK: new ICO guidance; clear policy vital

  • Germany: data privacy issues; monitoring personal devices almost impossible; need to involve works councils

  • Spain: popular, but law and practice less developed

www.olswang.com


Digital employment byod1

Digital Employment - BYOD

  • BYOD policies are not developed in France, unlike UK

  • February 2013: French Supreme Court decision allowing employers to monitor personal USB sticks connected to office device

  • Not permissible to monitor employees’ personal dictaphones

  • No case law on monitoring of private phones

  • Strong data protection laws in France may impair control by employer of personal devices

www.olswang.com


Eu data protection reform

EU data protection reform

  • January 2012, EC published proposals for reform of EU data protection law

  • Draft Regulation to replace existing Data Protection Directive

  • Aim to harmonise data protection processes and enforcement across EU and address privacy online

  • To be directly binding

  • European Parliamentary Committee confirmed its stance last month

  • EC/EP/Council will now negotiate

  • Agreement at EU level by May 2014, with new Regulation coming into force from May 2016?


New eu rules top changes

New EU rules: top changes

  • Current principles amplified + new principles e.g. RTBF/erasure

  • Anti-trust style fines – up to 2% of enterprise’s global turnover (or maybe 5%!)

  • Data breach notification requirements

  • More prescriptive tick box / documented / auditable compliance

  • DPO requirement

  • Direct obligations and liabilities for data processors

  • Data controllers stronger obligations for processor selection

  • National rules to govern processing in employment context


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