Technology has and continues to impart all aspects of human existence. Work and Employment are no exceptions. Since the Industrial Revolution, Employment, and the complexities of the Work Place have evolved severally and systemically. In recent times, work has shifted from the conventional skill and labour orientation to a more sophisticated technical orientation. This shift is substantially due to the impacts of modernization and improvements in technology. This technology infusion in workplace has generally affected affairs and interactions.
Recently, fear has been instilled in the hearts of countless actual and prospective employees (skilled and unskilled); Artificial Intelligence is going to take over the jobs that are inadequate in the first place. Notwithstanding this scare, the importance of technology is unquantifiable. It cannot be over emphasized in the area of employment.
EMPLOYMENT BEFORE THE INCEPTION OF TECHNOLOGY
Before the advent of technology in the work place, offices placed advertisements for employment via the mass media. I remember seeing graduates in my area way back rushing to the newspaper stand every morning to check for job vacancies! Applications by applicants were submitted either personally or by post. Job interviews were conducted only physically or what lawyers commonly term inter praesentes (FACE-TO-FACE). Even when a person was eventually employed, work was done based on either the skill or labour of the employee i.e. productivity was majorly based on the output of the employee. Clients outside the jurisdiction of the companies had to either take long trips or undergo the rigour of posting letters in other to pass on simple information to the company. Once members of the Board of Directors were absent or offshore, companies were grounded, brought to a standstill and could not make major decisions.
POSITIVE IMPACT OF TECHNOLOGY
At this juncture, it is important to consider the positive impact of technology on employment in Nigeria in recent times:
First, communication at work place has improved immensely due to the introduction of smart phones, chat-apps and video conferencing. Sending of emails, texts, and even documents are now seamlessly done via the internet. Also, technology has improved work through remote-working, tele-conferencing and co-working which have all ensured the possibility of the work-from-home phenomenon; office work carried outside the office. This is possible through apps such as Google-chat, Redbooth, Go-to-meeting, Zoom etc. Online (Google) maps also help in navigating unfamiliar places and enhance communication with locals.
Furthermore, in work organization, technology has assisted in keeping business fully organized through software such as Project Management Software, Facility Management Software, SaaS Tools (when installed in a work places, eliminates manual handling of task by automating when possible and focusing on integration of different tasks) etc. This has helped improve the quality, efficiency and degree of output of work done in diverse organizations.
In addition, Technology has ameliorated the security of confidential information. This is achieved through an end-to-end encryption of data on hardware and software and access to them is possible through finger prints, facial recognition and passwords. Even lockers/safes containing hardcopy data can also be secured by technology.
Lastly, technology has monumentally improved employee/employer relationship. Accountability of employees can also be monitored through the use of CCTV, Clocking system etc. Also, during training of employees, technology can be applied through the use of different applications in improving the professionalism of the employee.
NEGATIVE IMPACT OF TECHNOLOGY
Since the advent of technology and through its years of improvement, the fear that the technological change will lead to mass unemployment has remained inherent in man. In a much cited 1983 article, a great economist Wassily Leontief stated that with the rapid pace of modern technology, it may be impossible for many workers to adjust. Workers are being displaced from employment by machines that could work faster and better within time. This displacement eventually leads to poverty. Although, some Economists have disproved these assertions saying that this is not possible as it has always been the situation since the Industrial Revolution. Jobs and workplace will only change and people will adapt to the new jobs. Workers will adjust to the new trends and then definition of work and workplace will change.
Also, the advent of technology in the work place has broken down the bridge between work life and home life as even after the close of work, employees still receive tasks via emails, telephone calls etc. and have to meet up with deadlines even while at home. The work continues even while employees are on ‘leave’ from work and this causes stress on the employees which eventually leads to lack of efficiency and health problems. It must not be overlooked that the use of computers and other electronically appliances in the workplace are subject to the availability of electricity. Where there is power shortage, data being processed and other relevant information would automatically be wiped out except there is a backup. Moreover, softwares are prone to be affected by virus and this damages all relevant files and database, confidential information stored on the computer.
LEGAL/ETHICAL ISSUES ASSOCIATED WITH TECHNOLOGY AT THE WORKPLACE
The 21st century storm of technology has raised a lot of legal/ethical issues particularly as it relates to the workplace. Although, these cases are few in Nigeria, there are quite a number of them within foreign jurisdictions. I
In Nigeria, employers take disciplinary actions against employees for acting against laid down social media usage rules; where an employee posts what is deemed as “inappropriate information” on social media which would reasonably operate to belittle or diminish the integrity of the organization. Such disciplinary actions include termination of the employment of erring employees, instituting legal actions against them, et al.
It is meanwhile the opinion of the author that gross misconduct at work through the use of technology or social media by an employee can lawfully occasion termination of employment of such erring employee. This opinion is firmly anchored upon a number of cases where gross misconduct was held as a ground for lawful termination of employment and substantiated by some crucial judicial authorities. Although none of the cases directly exemplifies or addresses a circumstance where use of social media by an employee was found to amount to gross misconduct, the legal reasoning that follows below is incisive nonetheless.
In EZE v. SPRING BANK PLC  11-12 (pt.1) SCM, 93, the following definition was brought to focus:
“Gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer”.
It is submitted that the above definition of gross misconduct spaciously covers any improper act of an employee on social media which brings the employer into disrepute. In continuation, the Supreme Court in the afore-cited case stated:
“An employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct. It is no longer the law for an employer to wait for court’s pronouncement on a gross misconduct of his employee bordering on crime before dismissing him”.
From the foregoing, it is further submitted that gross misconduct emanating from an improper use of social media can lead to the dismissal of an erring employee.
Furthermore, Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) stipulates that every citizen of Nigeria has the right to personal privacy, even in their homes, correspondence, telephone conversations and telegraphic conversation. Suffice it to say that the employee in a workplace has his/her privacy safeguarded by the Nigeria Constitution. A question however rears its head:
“Can an individual’s fundamental right to privacy be limited by an employment agreement which is inferior to the constitution?”
The author answers in the negative.
Telecommuting can generate legal issues arising from the determination of time spent on work, overtime and even commitment of employees to work while physically away from work. “Telecommuting (also known as working from home, or e-commuting) is a work arrangement in which the employee works outside the office, often working from home or a location close to home (including coffee shops, libraries, and various other venues). Rather than traveling to the office, the employee “travels” via telecommunication links, keeping in touch with coworkers and employers via telephone and email.”II
Issues may arise from whether employees who neglect or refuse to turn in the work outside work hours can be queried. It is advised that employers establish a Telecommuting Policy specifically relating to certain position or designations within the organization. Also, employers may need to execute an agreement with the employee outlining what is expected from employees during such work time. Such agreement may also contain how to document time spent working.
In the same vein, it must be emphasized that the incidence of employers having access to passwords of employees’ social media account without the freewill or consent of such employees is unreasonable and a brazen infringement on the fundamental right of privacy of such employees.
In another related scenario, the use of video surveillance by employers on employee in the workplace does not necessarily breach constitutional rights. Although, actions can be instituted against employers preventing the use of employee monitoring in areas designated for health and personal comfort such as restrooms, locker rooms or lounge. However, in the United State of America, certain states have enacted laws prohibiting disclosure of personal social media passwords of employees to their employers and use of video surveillance in certain areas on employees.III
Importantly however, in order to prevent avoidable legal issues or controversies, employers must ensure that Social Media Policies are carefully and expertly formulated and communicated to their respective employees.
In conclusion, due to the dynamics and speed-of-lightning nature of technological development, more challenging legal/ethical issues are bound to arise in future. Employees and Employers are hereby advised to:
- Ensure that privacy rights of employees are not infringed upon in the workplace through the use of technology
- Employers should ensure that computer use policies that provide for employer monitoring in the workplace should be clearly communicated to the employees
- Employees should undergo adequate training on acceptable use, storage and retention of data in the workplace
- Policies regarding emails, internet, social media and passwords should be frequently reviewed and updated given the constant nature of change in technology.
I. See for example Smith v Colorado Interstate Natural Gas Co. 777 F. SUPP 854 (D. Colo 1991). Pietrylo v. Hillstone Rest. Grp (2009) U.S. Dist. Lexis 88702. City of San Diego v. Roe 543 U.S. 77(2004). Palleschi v. Cassano 2013 WL 3222573 (N.Y. App. Div. Jan. 29, 2013.) Ehling v. Monmouth-Ocean Hospital Service Corp, 872 F.SUPP.2d 369, 2012 U.S. Dist. Lexis. 74558 (D.N.J., 2012).
II. For meaning of Telecommuting https://www.thebalancecareers.com/what-is-telecommuting-2062113
III. Connecticut and Delaware require employers to notify employees while monitoring their email communication. Colorado and Tennessee requires public entities to adopt a policy related to public employee email. In McLauren v. Microsoft Corp. (1999) TEX APP LEXIS 4103 (Tex APP May 28, 1999), it was held that whatever was sent by the employee through the workplace mail is the property of the employer. In TBG INSURANCE SERVICES CORP. v. SUPERIOR CT. G6, no reasonable expectation of privacy in an employer’s computer located in an employee’s home. In Garrity v. John Hancock Mutual Life Insurance Co 2002, it was held that no reasonable expectation of privacy in emails transmitted on employer’s computer system; employer’s interest in promoting sexual harassment is greater than employee’s privacy interest.
Some states in the United States of America have outlawed the use of GPS and Radio Frequency Identification devices on their employees.
- Dan Schmidtt, Kenneth G, ‘Labor Law 2.0: The Impact of New Information Technology on the Employment Relationship and the Relevance of NLRA (2015) Articles by Maurer faculty Paper 1778 http://www.repository.law.indiana.edu/facpub/1778
- Eddy D. Ventose, ‘Internet & Technology Usage in the Networked Workplace: Legal Implications’. Available on https://www.onecaribbean.org/wp-content/uploads/LegalAspectsInternetUsageWorkplace.pdf
- J. Ella, ‘Employee Monitoring and Workplace Privacy Law’ American Bar Association, Section of Labor and Employment Law (2016) available on https://www.ameriacnbar.org/content/dam/aba/events/labor_law/2016/04/tech/papers/monitoring_ella.authcheck-dam.pdf
- J. Yarby, ‘Legal and Ethical Issues of Employee Monitoring’ Online Journal of Applied Knowledge Management Volume 1, Issue2, 2013, pp44-55
- Law Now, ‘Technology at the Workplace – A European Overview of Employment Law Issues in a Modern Working Environment’ (Online) posted on 18th May, 2017 on https://www.cms-lawnow.com/ealerts/2017/05/technology-at-the-workplace accessed on 9th February,2019.
- Oladele Ogunshote and Eberechi Ukejianya, ‘Getting the Deal Through – LABOUR & EMPLOYMENT 2007’, STREAMSOWERS & KOHN
Adeyemi O. Owoade
Law Axis 360°