Earlier this year, Seyfarth Shaw partnered to issue the 2022 Future Employer survey to clients and contacts. We surveyed in-house legal and business leaders to find out how they are thinking about the "Future of Work." This was an important continuation of Seyfarth's thought leadership endeavors related to futurist legal-thinking and the future of work, which we formalized five years ago with the inaugural survey in 2017. With respect to the protection of company data and intellectual property, the survey results highlight the need for companies to have thoughtful policies and procedures that address data usage and retention in a hybrid work environment.
Our 2022 survey shows that employers are largely optimistic and resilient, with faith in their people, their organizations, and their own future-readiness. While hybrid workforces and flexibility are here to stay, our respondents tell us that proximity still has power. When asked where their employees would be located, respondents on average said that 61% of their workforces would be located near a physical office, with a median response of 70%.
With the dramatic increase in the number of remote workers over the last three years, many companies pushed the limits of their existing technology infrastructures. Our survey shows that many have considered the potential information security, privacy, and compliance ramifications of remote access, and will continue to remain vigilant against threats by increasing their security postures.
The survey revealed that an overwhelming majority believe that it will harder to secure company data and intellectual property in a remote work environment. Even before COVID, employers have worked hard shoring up their proprietary data. With employers allowing employees to work from anywhere—even if just temporarily—existing risk points take on far greater significance.
For instance, the increase in international travel enhances the likelihood that a foreign government will access workers' computers and devices when they pass through immigration. Few people understand that immigration officials have the right to insist that travelers comply with a request to log in to their devices. Should officials wish to image the person's device, they could do so with virtual impunity. Similarly, while traveling in foreign jurisdictions that have the capability to monitor internet traffic, it similarly exposes companies' intellectual property—in many cases with no recourse.
Similarly, if a remote worker saves company information on their personal computer, outside of litigation, the company will struggle (and perhaps fail) to get that information back from the employee's personal device in many locations in the world. Employers need to have a thoughtful, well-implemented strategy for effectively "sandboxing" any personal device that touches employer data. This includes policies, technical, and administrative controls associated with the misappropriation and misuse of proprietary information.
Forward-thinking employers are considering these issues together, as they're all inextricably linked, and working to develop holistic policies that allow companies to attract and retain the talent they need, where they need it, without risking their "crown jewels"—talent and intellectual property—in the process.
While our respondents agreed that use of tech-enabled employee monitoring and analytics tools would go up, they also said overwhelmingly that employees would not be comfortable with this change. Ultimately, employers will be more transparent about monitoring because it's the smart thing to do, and because regulations will require it. While employees may accept monitoring, they will perhaps never be comfortable with it, even with increased transparency. Employers must weigh the desire to monitor and the advantages gained against the implicit message they are sending to their employees. From a purely regulatory point of view, not all clients are aware of their privacy obligations, which can potentially get them into legal trouble along with the potential of damage to employee relations and related psychosocial risks.
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