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This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew Magee.
Hello and welcome back to OUT-LAW Radio, where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.
We've been away for a few weeks working on a secret squirrel project to bring you even more information in even better ways, of which more soon. Today, though, we'll hear from an academic who's warning companies to prepare for a potential onslaught of lawsuits holding them responsible for their workers technology addiction. But first, here are some of the top stories from OUT-LAW.com, where you can read breaking technology law news throughout the week.
Controversial house giveaway gets green light
Intel hit with biggest ever competition law fine.
A controversial competition to win a house that was halted by the Gambling Commission has been allowed to proceed.
The Wilshaw family has announced that a draw will take place for the house in "the next couple of weeks" and the Gambling Commission said that its guidance on such competitions would be the subject of consultation and revision this summer.
The competition was investigated by the Gambling Commission, which is the regulatory body given the power to prosecute offences under the Gambling Act. The Commission would not comment on what decision it had made in the Wilshaws' case or the reasoning behind it.
The Wilshaws could not sell their Devon house so sold 46,000 tickets to a competition to win it at £25 each. There has been dispute, though, over whether the scheme was a legal prize competition or an illegal lottery. The Wilshaws say that a Gambling Commission investigation has now closed and they are free to make the draw for the house.
The European Commission has issued its biggest ever competition law fine to computer chip maker Intel. One competition law expert said that the billion euro fine will "open the floodgates" for civil actions that could cost the company further.
Intel has been fined €1.06 billion over secret payments and rebates to retailers who agreed to sell products containing its chips and not those of rivals. Though Microsoft has paid out more for its anti-competitive behaviour, most of those payouts were penalties for non-payment of the fine, which was less than half the amount demanded from Intel.
Alan Davis, an expert in competition law at Pinsent Masons, the law firm behind OUT-LAW, said that the fine heralded a new era of tough anti-competitive enforcement in Europe that is being matched in the US under the presidential administration of Barack Obama.
Those were some of the top stories from OUT-LAW News.
There is a pertinent question asked deep in the guts of an academic paper published in the journal Strategic Change that cuts to the heart of the problem facing many modern workers. 'Are people working anywhere/anytime', it asks, 'or working everywhere/all the time?'
The paper is by Nada Kakabadse, David Vance and Gayle Porter and its subject matter would be enough to strike fear into the heart of boardrooms everywhere. Can employers, it asks, be held liable for the technology addiction of their employees?
As Blackberries turn into Crackberries and iPhones blur the lines between personal gadget and work productivity tool, are we becoming a workforce of tech-slaves who never know how to turn off?
Porter and her colleagues certainly document evidence of addictive behaviour. Users of Smartphones such as Blackberries commonly report not having turned them off for a year or more, and talk of leaving them on their bedside tables so they can look at them as soon as they wake up.
So will people eventually sue their employers over their enslavement? This is the question Porter who’s a professor of Management at Rutgers University in the US and her colleagues attempted to answer in their research.
First, though, Porter explained for the benefit of the incredulous that, yes, technology addiction does exist.
Gayle Porter: There are a number of people who do research specifically on becoming addicted just to technology. People that sit down at for example the video games and 85 hours later this person is passing out from not eating and not sleeping and you know we can look at that and easily say there is some kind of a problem involved there that the person can’t get themselves to walk away long enough for basic needs. I hear from people all the time that say, I promised my wife or my husband that I would not take work along on our vacation so I would get up at 4.30 every morning and hide in the bathroom with my Blackberry or Treo and then do my work in there, so it is possible to try and keep it secret now.
Porter has previously researched work addiction, and says that IT addiction is intimately bound up with compulsive work behaviour.
Surely, though, a company wants to encourage work addiction, doesn't it? You get more work, more passion, better results from someone for no extra pay, even if it does happen to ruin their life. This has been the orthodoxy, says Porter, but it isn't so.
Gayle Porter: When people work too much it is not bad for the person but good for the company. It is actually bad for the company too. A person addicted to their work will tend to create crisis situations to feed that addiction and everybody around them suffers and all those interpersonal relationships become very distorted. So that overall picture of addiction to work is very dysfunctional and does cost the organisation money.
People caught in this spiral of destructive behaviour might well find themselves burnt out or fired and looking for someone to blame, and that someone might well be their employer, says Porter.
Many people's initial response will be that workers made their own choices, for which a company can't be blamed. But Porter points out that massive legal payouts have been made in the past for other behaviour that was previously seen as simply a matter of personal choice.
Gayle Porter: The legal situation with tobacco, the attempts to sue the fast food industry, other things like that that you think, oh it's a personal choice, how could you hold someone else liable for that? We have done it - over and over again. So we think when you look at the history of court actions on things that we might say really are personal responsibility, we have got that piece when we look at, you know, just the general, how litigious as this society is. Everybody wants to sue for everything. There is just a lot of reason to believe that sooner or later this is going to hit the courts.
So what does the law say? Well, workers' compensation laws differ greatly from country to country, and many are still focused on industrial-era problems, like someone getting their arm caught in a machine, rather than potential 21st century problems like Blackberry addiction.
In her paper Porter examines the chances of successful action under worker compensation laws, negligence law and the employer's legal duty of care to employees.
It is far from certain that any of these laws will provide a successful route to payouts to workers, but Porter says that companies should be changing their policies and practices now to ensure they aren't caught out in the future.
Gayle Porter: You know why wait for that to happen? Why wait until you're in a situation where your company is being sued if you can recognise the problem, set up some policies and procedures on, you know, work boundaries, use of technology boundaries, you know, make sure you have communicated to people that they're expected to behave a certain way and if they go outside of that that they're violating the company procedures. So if someone does come along at some point and say, “I think you are responsible for this”, the company could then go back and say, “Look, we gave you a policy, we upheld these procedures, it's not just on paper"; say "you did something else, so, you know, we can’t control that, it's not our problem”.
Companies should be proactive about telling workers what is, and what is not, expected of them. These lawsuits might never happen or might never be successful, but organisations should be prepared, says Porter.
Gayle Porter: The company has got to decide what they want their guidelines to be and they have to communicate that and they have to uphold that and they have to, they have to take a proactive approach so they don’t get caught up short. I have talked to people in some companies that will say, “Our company policy is that, unless it is a real emergency you should not be emailing after 7pm.” If the company is serious about it and they find out that somebody is not getting promoted because he is not answering his email at 10pm then they can go to that person’s manager and say, “Look you, can’t do this because you’re requiring that people operate outside the policy.” and we're serious about these policies. One of the things we like to really stress to people is, we are not saying that employees should begin suing their companies for this and we are certainly not saying that if they do that they will be successful but what we are saying is some of the elements are there, employers would be better off to think about it and take it seriously and implement a few things to head off the possibility.
That's all we have time for this week, thank you very much for listening. Do you know of a technology law story? Is there something you’d like to hear us cover. Do get in touch on email@example.com. Make sure you tune in next time; but for now, goodbye.