Measuring Worker Performance within the Limits of Employment Law in the Changing Workplace Environment of Industry 4.0

Abstract

“Structural changes in economies driven by digitalization, demographic changes and migration are changing the shape of jobs and workplaces. Technological advances have the potential to deliver enormous benefits to society but will also have profound consequences on employment and the quality thereof.” The very issues created by corporate restructuring and changing workplace environments, with their infusion of new technology, also create emerging employment law issues in regulating the changes and in addressing the challenges in evaluating performance. An employee's workplace environment is said to be a key determinant of the quality of their work and their level of productivity. Familiar legal issues may arise, though perhaps with unfamiliar applications. Not all jobs fall under the changing labor market conditions; and for those cases, traditional evaluations may be aided with electronic technology for measuring and evaluating productivity and performance. But for those many workers, now and in the future working in a changing or alternative work environment, at home, in a different city, overseas, or in an ambiguous or joint employment relationship, questions of legal application of contractual wages and statutory benefits, safety and health requirements, workers compensation, and especially anti-discrimination laws arising from these performance evaluations may create novel situations in areas of still developing legal solutions. This paper addresses employment law implications of evaluating workers in the changing labor market regarding its workplace environment and uses of technology. Following Part I Introduction, Part II of the paper describes the changing workplace environment with its restructuring of companies and resulting changes in the employment relationship that raise issues of who is the evaluator of worker performance and by what means and by whose standards it is undertaken, as well as the role of technology and unions in that evaluative process. Part III examines the legal implications of a changing workplace environment and new technology on workers and performance. Part IV analyzes the relationship between the performance evaluations arising in the changing work environment and the labor and employment laws within which performance evaluations take place and suggests possible reforms of existing employment law and performance evaluation approaches. Part V concludes.