New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Australia

  • at People + Culture Strategies

In the context of an employer-controlled workplace, it is generally much easier to control and mitigate risks to an organisation’s confidential and sensitive information. There are physical protections intrinsic to the workplace (including by generally being off-limits to non-staff) and cyber-networks often have institutional protections in place, such as virtual private networks, firewalls, anti-virus software and secure IP addresses.

Other data protections that normally exist in an employer-controlled workplace include:

  • the use of private meeting rooms to conduct meetings and discussions involving sensitive and confidential information;
  • the secure storage of private, confidential and sensitive information (both hardcopy and in electronic form) on employer-controlled premises;
  • restrictions on the use of personal electronic devices in the workplace; and
  • the content of phone calls or video calls, and even information simply displayed in the workplace (including on computer screens), being kept private under the confines of the physical workplace.

However, the risks to data protection can be much harder to mitigate in the remote-working environment. These risks are heightened for several reasons, including that an employer has much less “visibility” over how employees deal with the employer’s (and any client’s) information in the home environment and much less when it comes to others who may be sharing that space. In this context, one obvious risk is the inadvertent and even deliberate sharing of sensitive information with one’s housemates, family members or guests.

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Employers must ensure the protection of their company’s data but also of employees’ data.

According to article L. 1222-10 of the French labour code, the employer must inform the teleworking employee of the company's rules regarding data protection and any restrictions on the use of computer equipment or tools. Once informed, the employee must respect these rules.

The collective national agreement of 26 November 2020, provides more details in article 3.1.4. It is the employer's responsibility to take necessary measures to protect the personal data of a teleworking employee and the data of anyone else the employee processes during their activity, in compliance with the GDPR of 27 April 2016 and the rulings of the National Commission for Technology and Civil Liberties (the CNIL).

The CNIL said in its 12 November 2020 Q&A on teleworking that employers are responsible for the security of their company's personal data, including when they are stored on terminals over which they do not have physical or legal control (eg, employee's personal computer) but whose use they have authorised to access the company's IT resources.

The National Agreement of 26 November 2020 recommends three practices:

  • the establishment of minimum instructions to be respected in teleworking, and the communication of this document to all employees;
  • providing employees with a list of communication and collaborative work tools appropriate for teleworking, which guarantee the confidentiality of discussions and shared data; and
  • the possibility of setting up protocols that guarantee confidentiality and authentication of the recipient server for all communications.
Last updated on 21/09/2021

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

Security controls

The common risks associated with remote working derive from the absence of security controls over equipment, software, and data, and not having any policies for remote-working schemes, leading to:

  • employees storing sensitive information in their local machines, without the control of employers over such tools;
  • compromised security controls; and
  • Wi-Fi networks and routers in homes are more easily compromised, increasing the risk of exposure.

Companies have the right to install security controls for the equipment and tools to be used by teleworkers to avoid any leaks of information and limit their use, because this hardware is the property of the employer. The common practice in Mexico is to implement a security data policy and a work tools policy.

Additionally, even though there are no specific legal provisions concerning the plausible risks associated with data protection in remote-working schemes, the Federal Law for the Protection of Personal Data in Possession of Private Individuals or Entities, the Federal Law for the Protection of Industrial Property, and their regulations and guidelines, establish provisions for the protection of rights concerning personal data, confidential information, and trade secrets, which also apply to remote-working schemes; therefore, all employees working remotely must comply with these laws and regulations. To prevent and avoid the disclosure of this information, the prevailing practice is to enter into agreements with employees establishing specific obligations in connection to confidentiality and data privacy. Such obligations usually refer to the policies and processes established by employers to ensure information security, and the corresponding penalties in the event of any breach.

Last updated on 21/09/2021

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Australia

  • at People + Culture Strategies

Yes, operators of health, aged and disability care facilities are subject to public health orders which make vaccination against covid-19 a requirement of entry.

Whether an employer would be justified in terminating employment based on an employee’s refusal to be vaccinated will depend on the particular circumstances, and an employer would be required to follow a proper process before making any such decision (including allowing the employee the opportunity to be heard before a decision is made that might affect their employment.

We note the Fair Work Commission, Australia’s employment relations tribunal, has upheld the termination of an aged-care receptionist who refused an influenza vaccination. The decision to terminate the employment was made in the context of a public health order that no one was allowed to enter the facility operated by the employer without an up-to-date influenza vaccination to ensure the safety of its clients. We consider this decision serves as a precedent for those employers who are subject to public health orders concerning covid-19 and faced with employees refusing to receive the covid-19 vaccination.

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Please see above (questions 8 and 9) regarding the workplaces and specific industries concerned by making the access to the workplace conditional on individuals having received a Covid-19 vaccination.

Last updated on 21/09/2021

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

No, the government has released a covid-19 FAQ where they clarify that vaccination is not mandatory.

Last updated on 21/09/2021