Up Up and Away into the Cloud!

By Ashtyn Hemendinger

The Cloud is a nebulous subject matter for many. One may wonder, what is the cloud and even more so, what does the cloud have to do with employment law? To answer the first question, the cloud is a collection of larger servers located elsewhere (e.g., data centers) and maintained by a vendor.[1] The data or application becomes accessible to users anywhere there is an Internet connection.[2] If you’ve used Gmail or a Dropbox, then you have experienced the Cloud.

Devices and the Cloud are being incorporated not only into people’s personal lives, but also into their work lives. More and more companies are switching to cloud-based technology systems for daily tasks and to streamline work product.[3] In the past, businesses would have to purchase software licenses and install programs on in-house computer servers.[4] Employees could access the software through a local area network and data was stored directly on the computers and servers.[5] In fact, “several cloud computing applications, such as web email, Wiki applications, and online tax preparation,” have become common uses for work and personal experiences.[6] With the increase in cloud computing application in the workforce, issues arise that involve employment law and security.

One cloud concern that employers should be aware of is wage and hour claims.[7] The cloud has further enabled employees to work outside the traditional office setting.[8] While laptops and smart phones broke the traditional office setting mold a while ago, cloud based computing goes one step further.[9] The Cloud allows workers access to email accounts and confidential files from any location and at any time. In situations where employees need to log all of their work hours, this out-of-office work creates a gray area for compensation.[10] Having an employee send a document over the weekend or check their email after-hours may not seem like a big deal, since it only takes a few minutes. However, these tasks can really add up.[11] If employees are not compensated for these tasks, employee complaints or suits could follow.[12]

To solve this issue, employers need to track employees’ out-of-the-office work to ensure that employees are not taking advantage of this privilege. Policies about when employees can use cloud-based software should be implemented by the company’s HR and IT departments.[13] However, due to the Cloud being a new topic in the workplace, the policies out there in the workplace at the moment are far from perfect. As time goes on, the employment world will have to adjust to the developing cloud technology and the issues that arise as a result.

[1] Web & Collaboration Overview, Bell Canada (2015), http://www.bell.ca/shop/SB_viewCustom.page?pageId=SB_WHAT_IS_CLOUD_COMPUTING.

[2] Daniel Schwartz, Cloud Computing and Employment Law: The Unchartered Sky, Connecticut Employment Law Blog, (June 23, 2009), http://www.ctemploymentlawblog.com/2009/06/articles/cloud-computing-and-employment-law-the-uncharted-sky/

[3] 2011 CIO Agenda Findings, Gartner, http://www.gartner.com/technology/cio/cioagenda_findings.jsp (last visited Oct. 15, 2015) (stating that almost half of all CIOs expect to operate their applications and infrastructures via cloud technologies within the next five years); Law Firm Software Solution, Rippe & Kingston Law Firm Management Solutions (2012), http://www.legal.rippe.com/LMS.

[4] Cloud Concerns For Employers Part 1, McBrayer, McGinnis, Leslie & Kirkland PLLC (May 13, 2014), http://mcbrayeremploymentlaw.com/2014/05/13/cloud-concerns-for-employers-part-1/.

[5] Id.

[6] Cloud Computing, Electronic Privacy Information Center (2015), https://epic.org/privacy/cloudcomputing/.

[7] Five Employment Law Considerations in “The Cloud,” Epstein Becker Green Take 5 Newsletter (Mar. 19, 2014), http://www.ebglaw.com/news/five-employment-law-considerations-in-the-cloud/.

[8] Cloud Concerns For Employers Part 1, McBrayer, McGinnis, Leslie & Kirkland PLLC (May 13, 2014), http://mcbrayeremploymentlaw.com/2014/05/13/cloud-concerns-for-employers-part-1/.

[9] Id.

[10] See id.

[11] Id.

[12] Cloud Concerns For Employers Part 1, McBrayer, McGinnis, Leslie & Kirkland PLLC (May 13, 2014), http://mcbrayeremploymentlaw.com/2014/05/13/cloud-concerns-for-employers-part-1/.

[13] Ian C. Schaefer, 5 Employment Law Considerations When Cloud Computing, Law360 (Apr. 8, 2014), http://www.law360.com/articles/523645/5-employment-law-considerations-when-cloud-computing.

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