While still maintaining a physical location, more and more businesses are expanding into a virtual world where business is conducted online. The new virtual workplace has advantages for employers and employees alike, but challenges and risks too. Among them are security and compliance concerns, the potential for reduced interpersonal interaction and the impact of the virtual workplace on restraint of trade.
The benefits of the virtual workplace are many. If properly implemented and managed, it enables more flexibility for employees and fewer commutes, which means employees have more time to concentrate on work output and enjoy a better work-life balance. Employers stand to see levels of performance and productivity improve and customers to experience better service. Additionally, there is the prospect of lower overhead costs for employers, as they no longer need such large office spaces.
At the same time, the virtual workplace brings challenges that employers need to address to ensure the success of the business. Security and compliance concerns loom large - breaches of security may have far-reaching consequences for a business, including loss of vital data and loss of intellectual property. Working in a virtual workplace may also lead to feelings of isolation and demotivation among employees because of reduced personal interaction, a lack of support structures and a loss of camaraderie and cohesion – working remotely in a virtual workplace does not lend itself to 'popping' next door to chat to a colleague. Active steps should be taken to address these issues, such as holding regular team meetings and periodic social interactions.
Other concerns are threats to privacy, potential breaches of confidentiality due to careless use of online communication platforms, increased risk of damage to brand and reputation, financial losses that may occur as a result of brand and reputation damage and breaches of labour laws. The possibility of increased incidents of cyber bullying and harassment must also be addressed and effective steps taken to prevent this conduct.
A new look at restraint of trade
Finally, consideration should be given to the impact of the virtual workplace on restraints of trade.
In South Africa, restraints of trade are enforceable as long as there is a proprietary interest worthy of protection and the restraint of trade is reasonable. In considering reasonableness, the courts will look at the duration of the restraint – no problem there – and geographical location – which is where it becomes more challenging.
Where business is being conducted online and is no longer dependent on physical location, the ability to communicate and establish relationships with clients in different parts of the country and, indeed, the world has increased exponentially. A traditional restraint of trade that restricts an employee from being employed or engaged in a specific geographical location is unlikely to provide the protection needed. It is thus essential to reconsider the 'geographical location' in cyber terms as opposed to physical terms and to ensure that properly crafted restraints of trade are executed in order to provide proper and comprehensive protection, otherwise they will not be worth the paper they are written on.
In ensuring the success of the virtual workplace, risk management is essential. Effective steps should be taken to safeguard confidential and sensitive information, protect trade secrets and prevent cyber-attacks. This necessitates a strategy for dealing with and embracing new technology and the virtual workplace. Online profiles must be password protected, messages properly encrypted, network firewalls installed and the server secured. Use of virtual private networks or similar technology is advisable to ensure that remote users can access corporate applications and resources securely.
Protecting employees from threats such as cyber-bullying
It is not enough to simply protect the business from the dangers of the virtual world. There is also a need to provide a safe virtual working environment for employees. Consideration needs to be given to the types of threats employees may face when working in the virtual workplace and how these threats can be adequately addressed and employees adequately protected.
A good start is to implement appropriate policies to address and regulate remote access, flexi-time workers and tele-commuters, overtime work, online communications (including social media) and harassment policies. In addition, employees should be given clear guidelines about appropriate online behaviour and to ensure that communications are secure and the corporate information technology structures are protected. The importance of maintaining confidentiality, avoiding breaches of privacy, dignity and equality and protecting against cyber-bullying and harassment must be clearly explained to employees in order to protect the business.
The virtual workplace is no less complex than the physical world of work but if properly and realistically planned for, it could be rewarding for employers, employees and customers alike.