New technology, new working patterns means new challenges for employers
Commentary by Marcin Cetnarowicz, partner at SSW Pragmatic Solutions’ labor law team , concerning employee subordination:
Back in the past, the request from the customer (employer) to the lawyer was: “Please prepare an employment contract for such a person”, while today it is: “On what basis, and what contractual formulation can we hire a new person, so that it is most advantageous for us and for the employee?”. Once, no one attached any importance to the issue of the processing of the personal data of employees, today – in the age of the GDPR – employers very often need support in this area. Once, the terms “secondment” or “home office” were practically unknown, today in some industries (especially IT, new technologies), these employment practices are regularly used (despite the lack of regulations in statutory provisions).
On the other hand, a large number of employers operating in traditional industries (production, construction, trade) are still present on the market. In the case of these employers, the scope of questions and issues addressed to law firms is relatively stable and includes matters belonging to the so-called “canon of labor law” (basis of employment, remuneration, working time, etc.). Of course, in addition to questions from the “canon”, more and more questions relate to intellectual property law, protection of business secrets, and issues arising from current news and legislative changes (e.g. ECP).
Labor law regulations cannot keep up with the changing conditions on the market. Although this problem relates to many other areas, it is particularly visible in labor law. A big question mark today is, among others, the timeliness of classic employee subordination, which, according to art. 22 § 1 of the LC is a fundamental feature of the employment relationship. In many industries, at many workplaces, work is task-oriented. The employee is not subject to the employer’s ongoing control. The employer’s role is limited to the assignment of tasks, the setting of goals, providing the employee with the resources to implement them, and the employee is required to develop the strategy for performing tasks/achieving goals, its implementation and achieving the required results.
Challenges that await employers and employees in the future will be associated with the dynamic development of new technologies. In the long term, we can expect the disappearance of many traditional professions, which will be replaced by completely new and previously unknown ones.
The model of employment will be subject to change, and models based on sharing, both sharing employees by several employers and the work itself by several employees (crowdworking) may become a dominant contractual pattern. It cannot be ruled out that the labor law, which we know today, and which is rooted in the industrial age, will be completely remodeled. In addition, finding a reasonable balance between employee control and their right to privacy will become a great challenge. Already today, new technologies and tools allow for the very meticulous monitoring of employees, what they are doing at a particular moment, where they are, and where they are going, etc.
The full text of the article on the pages of Gazeta Prawna.