Employment Law Risks in a Virtual Workplace

Our modern, post-pandemic world continues to evolve into a new era of work. As workplaces increasingly move towards remote or at least hybrid environments, companies are sorting out how to build infrastructures that support ongoing culture, performance and customer satisfaction.

Our law firm has been virtual since we started out in 2017. Not only do we advise clients every day about their virtual workplace legal risks, but we experiment every day with virtual approaches and issues internally with our own team to continue to build a healthy and happy virtual business. 

Here are the top 3 employment law risks we run across when businesses are solidifying their remote workplace. 

#1 Clarity on Roles

The traditional management style of physically observing how people work is grandfathered out with a virtual workplace. Instead, the main criteria of success is focused on output rather than input. 

To support strong output results, it is critical employees understand the specific requirements, duties and responsibilities of their job. This includes setting out clear expectations of how to do work, where things are in a digital environment, what tools are available to do the job, who to talk to if issues arise, who to talk to if there are digital or tech issues and general resources available to do the job. 

Employers cannot discipline or fire an employee who didn’t know about a process, rule, or benchmark that they were breaching or failing to meet. 

The physical workplace is designed to show people where this all is. That same information needs to be conveyed to employees in a digital format, with no assumptions that an employee should just know where stuff is or how to do the job. 

The importance of clarity on roles is nothing new, but being deliberate and thoughtful about what gaps of information an employee may have when working remotely does require taking a fresh look at things. 

We have a centralized, internal online Dashboard for our firm where our ‘source of truth’ documents all sit, which our team knows is the one place to go to get all the key documents. We also set out every process in our WTF Manual (our Working the Flow Manual) so that everyone knows the one link to click for everything. This is all a deliberate intention to centralize information and not rely on traditions, institutional knowledge, gatekeepers or customs. Everything is up for evolution every day and is deliberately set out in centralized locations.

#2 Location & Hours of Work

Specifying the location and hours of work in an employee’s contract gives employers the ability to address issues when an employee is not quite cutting it. 

For example, including a “location of work” provision in a hybrid office that reserves the right to the employer to pull the employee back to the office if necessary gives employers the flexibility to manage employees who may not thrive in a remote workplace. If the employee is clearly unproductive and distracted because of the remote work location, employers can then require the employee to return to the office without the risk of triggering a constructive dismissal complaint. 

The same goes for core hours of work. If it is important that the employee be working for specific or core hours, simply specify in the contract and have customs to keep the social glue intact. The age-old tradition of coming into the office, saying hello to coworkers, getting your coffee in the lunchroom, complaining about your commute and catching up with colleagues are all important “starters” for the day. This can all be done virtually through chat rooms or quick daily huddles. 

Vague or silent contract terms and policies that fail to specify location and hours of work need to be updated. Older contracts for salaried office workers often didn’t contain these terms because we all “just knew” what those conventions are. We’re in a new era of flexible work where the traditional 9-5 hours aren’t always critical – as long as people are putting in the overall expected hours of work and meeting output benchmarks. Having core hours for collaboration, however, does tend to be a commonality in most workplaces.

#3 Data Security

Cybersecurity and ensuring the confidentiality of digital information is a critical legal risk to address in every business every day. This includes the basics around unique and secure passwords, 2-factor authentication and strong IT support for firewalls, encryption and other measures to keep pace with cybersecurity developments.

Having specific terms in an employment agreement that requires adhering to these security standards gives employers the tools to address employees who are too casual about security. Yes, 2-factor authentication and signing in every day to a password security system is a pain in the neck, but clicking the “Remember Me” box basically hands over the keys of the castle.

As with all policies, but particularly with such a business-critical policy in a virtual workplace, regular training and reminders around data security policies help explain the urgent “why” of data security and increase overall compliance. 

Many employees will think they’re either not a “techie” kind of person or think they’re smarter than the cyber-attackers, both leading to inconsistencies and gaps in security. Data security is an area where employers will want to be very clear, strict and consistently on top of policy adherence. 

If you have any questions about the legal risks of running a business, give us a virtual shout!