Companies are not the only ones facing the new challenges of digitalization. Legislators too are being forced to address completely new issues in the wake of the digital transformation.
17 MAR 2019
Technology is speeding ahead
The list of labor law issues arising as a result of digitalization is long: What will happen to the statutory eight-hour day if the borders between work and private life become blurred? To what extent may employers use their employees’ GPS data? And are crowd workers self-employed or are they employed – and thus subject to social insurance contributions?
If we look further into the future, the questions don't get any easier: Who is liable, for instance, if a decision is no longer made by a person but by artificial intelligence? Many rules of the analog world can't be easily transferred to the digital world – which is where they reach their limits.
The wish for more flexibility
The gap between everyday reality and the legal situation is particularly evident when it comes to working hours. The current German Working Hours Act dates back to 1994 and sets forth a maximum working time of eight hours per day. This was to satisfy the demands made by the 19th century workers movement – the main focus of which was admittedly the physically demanding labor of factory workers. According to the Act, which is still valid today, there must also be a rest period of 11 hours between two working days.
But digital technologies have opened up a whole new world of opportunities for employees in terms of where and when they work. Moreover, work-life balance is far more important to employees than it was before. Let’s say, for instance, that an employee wants to work until the afternoon, then pick up the children from school, take them to their sporting activities, and then go back to answering work e-mails in the evening. Does this constitute an infringement of the law if there are less than 11 hours between the evening e-mail check and arriving at work in the morning? This outdated legal framework presents employers with a dilemma.
The legislation at least allows for individual arrangements to be made by collective agreement. For some time now, collective agreements in the chemical industry have provided for flexible working models, arrangements regarding long-term accounts, and working hours adapted to the individual’s stage of life. Through our innovative mywork@merck model, as far as possible we at Merck KGaA, Darmstadt, Germany also offer our employees the flexibility and independence to decide where and when they work. With a view to the future, the German Federation of Chemical Employers’ Associations (BAVC), of which I am President, is calling for political leaders to allow for greater experimentation regarding collective agreement arrangements for new working models.
In any case, legislators have recognized the importance of this issue. The German Federal Ministry of Labour and Social Affairs (BMAS), for instance, is currently drafting a law governing remote working aimed at providing employees with better options for working from home. Moreover, BMAS has a think tank tasked with drawing up new regulations to address the challenges of the future world of work.
The fear of transparent employees
On the one hand, smartphones and clouds make it easier for people to work from home – but at the same time for supervisors to check up on their employees. In the new world of work, many legal issues are also being raised regarding data protection and privacy. And here too it’s about striking the right balance between protection and excessive regulation.
Data are the raw material of the digital economy, enabling more efficient operating processes and new business models. Moreover, they open up new possibilities in terms of employee evaluation. Nevertheless, employee data must continue to enjoy a high level of protection and may not be abused by employers to monitor their employees.
Nowadays, for instance, logistics providers and couriers are directed along the quickest route through warehouses or road traffic by smart GPS systems. At the same time, the data collected during these journeys allow conclusions to be drawn regarding exactly where employees are at a given time. So where is the line between necessary checks and unacceptable monitoring?
The discussions surrounding the German Federal Data Protection Act, which also contains regulations on handling employee data, show just how hard it is to find the right balance. Some fear that the legislation cannot prevent improper employee monitoring, while others feel that its provisions go too far, for instance the right to the deletion of data in the event of termination.
Striking the right balance
Companies, governments and scientists across the globe are now discussing the appropriate legal framework for the future world of work. Just recently, the International Labour Organization, a specialized agency of the United Nations, published a comprehensive report containing suggestions for regulating the future world of work.
This calls for a broad and ongoing discussion, since technological progress is speeding ahead and becoming a reality. Political leaders cannot afford to fall behind if they intend to shape the changing world of work to the benefit of all involved. The future world of work requires a clear legal framework that, on the one hand, gives companies enough flexibility to exploit the full potential of new technologies, but at the same time provides suitable protection to employees. Here we must – as so often – try to strike the right balance among the countless options.