Software as a Curse or Blessing? Collaborative Overload, SaaS and Employment Law (April 2020)
Cloud-based “Software as a Service” (SaaS) solutions in workforce organisation are interesting for globally active companies in a wide variety of industries. As with any change in workforce organisation, they bring promises and challenges: from an employment law, data protection law as well as social perspective.
SaaS solutions’ unique selling point is easy to understand: Increasing efficiency, improving communication, facilitating workflow and adding possibilities on a global scale. Processes can be globally standardized, simplified and aligned. Special HR tools even enable cross-location personnel analysis, including the creation of reports. There are also modules for recruiting, talent management, compensation, time and absence, etc.
The Employment Law of Software
Although SaaS solutions promise a one-size-fits all approach, their implementation and use have employment law implications. Their degree and consequences vary from country to country. In Germany, for example among other implications, SaaS is a so-called technical facility. They are considered as a means to control employee performance and behaviour. Therefore, SaaS-tools are subject to co-determination of the works council. Furthermore, from a legal point of view, SaaS solutions could trigger a series of further participation and co-determination rights of the work council, depending on the modules. No SaaS solution is an exception. Works agreements must be signed before the use of any SaaS solution is permitted by law.
The Data issue
In addition, SaaS give rise to data protection issues. The new requirements of the General Data Protection Regulation (GDPR) in conjunction with the German Federal Data Protection Act (BDSG) must be taken into account in negotiations between the employer and the works council regarding a corresponding works agreement on the processing of employee data. For example, a works agreement must primarily regulate the processing purpose, processing duration, deletion regulations and access rights to employee data, as well as general data protection aspects, unless these are already part of an existing general works agreement on IT systems, which deals with items that always apply in the same way, regardless of the specific processing purpose.
The Lawyer’s Solution
If such a general works agreement on the introduction and use of IT systems does not yet exist, it may make sense, given the large number of IT systems in use, to consider concluding a corresponding general works agreement, possibly at the level of the general works council or even the group works council. The existence of a general works agreement for IT systems can accelerate the conclusion of individual works agreements for newly added IT systems.
The Lawyer’s Concerns
Since the introduction of IT systems involves complex, sometimes difficult and lengthy negotiations with the works council on works constitution participation rights and data protection aspects of GDPR and BDSG, a realistic timetable must first be set for the introduction. This must be agreed globally with the responsible parties in order to prevent new IT systems, such as in our example „Workday“, from being introduced in other countries, but not in Germany.
As with most business trends, the law is just one of many aspects. Legal challenges can be overcome. Law might not be the only challenge to consider when discussing SaaS. HR magazines, for example, have recently reported on a new kind of fatigue. This fatigue pertains to too many conference calls, chat groups, group meetings and talking which causes social pressure, while eating up working time. The workload increases while the actual work remains undone. Often, this type of fatigue is related to the excessive or wrong use of collaborations platforms. Experts refer to this phenomenon as Collaborative Overload.