Trends Analysis: New Sources of Evidentiary Data in Employment Disputes

Below is a copy of a featured article written by Denisa Luchian for The Lawyer.com that features Lighthouse's John Shaw.

A highlight of the challenges arising from the increased use of collaboration and messaging tools by employees in remote-work environments.

Our “top trends” series was born out of a desire to help in-house lawyers with their horizon scanning and with assessing the potential risks heading their way. Each post focuses on a specific area, providing companies and their lawyers with quick summaries of some of the challenges heading their way.

Our latest piece in the series looks at the top 3 trends in-house lawyers should take notice of in the area of employment disputes, and was carefully curated by one of our experts – Lighthouse director of business development John Shaw.

The Covid-19 pandemic has affected every sector of law and litigation, and employment law is certainly no exception. From navigating an ever-changing web of COVID-19 compensation regulations, to ensuring workplaces are compliant with shifting government health guidelines – the last six months have been chaotic for most employers. But as we all begin to regain our footing in this “new normal”, there is another COVID-19-related challenge that employers should be wary of: the increased use of collaboration and messaging tools by employees in remote-work environments.

This past spring, cloud-based collaboration tools like Slack and Microsoft’s Teams reported record levels of utilisation as companies around the world were forced to jettison physical offices to keep employees safe and comply with government advice. Collaboration tools can be critical assets to keep businesses running in a remote work environment but employers should be aware of the risks and challenges the data generated from these sources can pose from an employment and compliance perspective.

Intermingling of personal and work-related data over chat

As most everyone has noticed by now, working remotely during a pandemic can blur the line between “work life” and “home life.” Employees may be replying to work chat messages on their phone while simultaneously supervising their child’s remote classroom, or participating in a video conference while their dog chases the postman in the background. Collaboration and chat messaging tools can blur this line even further. Use of chat messaging tools is at an all-time high as employees who lost the ability to catch up with co-workers at the office coffee station transition these types of casual conversation to work-based messaging tools. These tools also make it easy for employees to casually share non-work related pictures, gifs, and memes with co-workers directly from their mobile phone.

The blurring line between home and work, as well as the increased use of work chat messaging can also lead to the adoption of more casual written language among employees. Most chat and collaboration tools have emojis built into their functionality, which only furthers this tendency. Without the benefit of facial expressions and social cues, interpretation of this more casual written communication style can vary greatly depending on age, context, or culture.

All of this means that personal, non-work related conversations with a higher potential for misinterpretation or dispute are now being generated over employer-sanctioned tools and possibly retained by the company for years, becoming a part of the company’s digital footprint.

Evidence gathering challenges

Employers should expect that much of the data and evidence needed in future employment disputes and investigations may originate from these new types of data sources. Searching for and collecting data from cloud-based collaboration tools can be a more complicated process than traditional searching of an employee’s email or laptop. Moreover, the actual evidence employers will be searching for may look different when coming from these data sources and require additional steps to make it reviewable. Rather than using search terms to examine an employee’s email for evidence of bad intent, employers may now be examining the employee’s emoji use or reactions to chat comments on Teams or Slack.

Evidence for wage and hour disputes may also look a bit different in a completely remote environment. When employees report to a physical office, employers can traditionally look to data from building security or log-in/out times from office-based systems to verify the hours an employee worked. In a remote environment, gathering this type of evidence may be a bit more complex and involve collecting audit logs and data from a variety of different platforms and systems, including collaboration and chat tools.  A company’s IT team or eDiscovery vendor will need to understand the underlying architecture of these tools and ensure they have the capacity to search, collect, and understand the data generated from them.

Employer best practices

Employers should consider implementing an employee policy around the use of collaboration tools and chat functionality, as well as a comprehensive data retention schedule that accounts for the data generated from these tools. Keep these plans updated and adjust as needed. Ensure IT teams or vendors know where data generated by employees from these new data sources is stored, and that they have the ability to access, search, and collect that data in the event of an employment dispute.