#Lexamp News Team


The expression "smart working" is used in Italian company jargon to indicate a way of performing work, governed by Law 22 May 2017 no. 81, where it's technically defined as "lavoro agile".

With the introduction of the rules relating to the management of the health emergency connected to the Covid19 pandemic, which imposed the suspension of most production activities, smart working has become a very important topic. In fact, the possibility of continuing activities, even those suspended, has been provided with this strategic organizational tool.

So, in the case of companies falling within the scope of those considered "essential" under the Decree of the President of the Council of Ministers 22 March 2020, which remain operational, the continuation of the activity remains in any case subject to the rules of the previous D.P.C.M. 11 March 2020, whose art. 1, paragraph 7, letter a), provides that "the maximum use [...] of agile working methods for activities that can be carried out at home or remotely".

In the different case in which, instead, the company carries out activities that are not considered "essential", the same D.P.C.M. of  March 22, 2020, even though it provides for their suspension, article 1 letter c) states that "the production activities that would be suspended [...] may in any case continue if they are organized at a distance or agile work".

It is clear, therefore, that smart working represents the best chance available to companies and workers not to succumb, in a period of serious production crisis and economic uncertainty such as the current one.

Moreover, we must consider the great opportunity offered by this "rediscovery" of agile work: a huge test, extended to the entire Italian productive fabric, to break through the use of an organizational tool destined to remain a strategic factor, for most companies, even at the end of the crisis.

So let's try to better understand exactly what smart working is.

To art. 18 of Law 81/2017 (after stating that this measure is intended to "increase competitiveness and facilitate the reconciliation of life and work time") it is explained that agile work is a "mode of execution of the employment relationship established by agreement between the parties, including forms of organization by phases, cycles and objectives and without precise constraints of time or place of work, with the possible use of technological tools for the performance of the work activity", in which the service "is performed, partly inside company premises and partly outside without a fixed workstation, within the maximum daily and weekly working time limits, deriving from the law and collective bargaining".

So, smart workers are employees who carry out their work without any constraints regarding the hours and place of performance of the activity, in most cases making use of technological tools that allow this "agility" in the performance.

Normally, the use of smart working requires a specific individual agreement between employer and employee. Article 19 of Law no. 81/2017 provides that this agreement must be in writing and regulates "the performance of the work carried out outside the company premises also with regard to the forms of exercise of the employer's managerial power and the tools used by the worker", also identifying "the worker's rest times and the technical and organizational measures necessary to ensure the disconnection of the worker from the technological work equipment".

The coronavirus emergency led the government to introduce an exception to the rule of the agreement. In fact the D.P.C.M. 1 March 2020 has provided, in art. 4, paragraph 1, letter a), that "the mode of agile work [...] may be applied, for the duration of the state of emergency [...] by employers to any employment relationship [...], even in the absence of individual agreements".

The employer, which under Article 21 of Law no. 81/2017 retains the power to control and discipline the worker at a distance, must also ensure his health and safety and to this scope, in accordance with the provisions of Article 22 of the same Law, must provide written information to identify all the general and specific risks related to the particular mode of performance of the work. The worker, instead, has to cooperate in the implementation of safety measures.

Also for this general rule, an exception related to the coronavirus emergency has been introduced: the D.P.C.M. March 1, 2020 provides that "the obligations of information [...] are fulfilled electronically also using the documentation made available on the website of the National Institute for Occupational Accident Insurance", as indicated in art. 4, paragraph 1, letter a).

Among the risks with the greatest impact on the organization of this type of work, it seems useful to highlight at least two important categories.

First, there is an obvious privacy risk.

Especially with the promiscuous use of the worker's personal devices, it is highly probable that from the point of view of personal data protection the security is inadequate. Therefore, both the data of the worker himself and those of the company will be exposed, including data referring to all the recipients of the company activity.

The interesting article "Smart working and data protection: how to reconciliate "lavoro agile" and privacy in an emergency context", published by Prof. Federico Bergaminelli on our Firm's web site, highlights how, very often, in emergency situations - such as the current one - one ends up operating through hasty VPN connections to company servers, with fictitious "do-it-yourself security" measures. Often in total lack of a clear company policy for the use of technologies outside the company walls.

There is also the risk of overworking.

By using their own personal devices benches to work, the smart worker risks remaining in fact always connected with the company, losing track of the time spent at work. By performing in a largely isolated manner, the worker will naturally be led to a constant search for feedback from the employer and colleagues. There may be cases of unstable connection, difficulties in the use of technology, as well as other problems that can reduce productivity and cause depression.

Both these risk factors can be mitigated, as Prof. Bergaminelli observed, "if smartworking does not remain an initiative aimed only at workers but becomes a real cultural revolution towards digital also for the employer. New models of organization and business management that address the problems, compliant and shared must be adopted".

The company must therefore equip itself with an adequate management system for the protection of personal data, in accordance with Regulation (EU) 2016/679 (GDPR) and Legislative Decree 196/2003, after analysis of the specific risk by means of privacy impact assessment and with the adoption of proportionate security measures. The management system must be integrated with a specific policy for smartworking and the use of digital technologies outside the company.

The employer must also provide smart workers with specific training on the correct use of technology, with a preference for the use of company devices where possible. It must also encourage work organisation that is capable of reconciling life and work time, facilitating reporting and providing frequent feedback to staff.

Well, to have "smart workers" you need above all "smart entrepreneurs", aware of the strategic importance of proper business organization and management, supported by the advice of specialized professionals, especially to deal with delicate and complex phases such as the one that the productive economy is going through.