With every significant advancement in technology, companies need to think and plan ahead about how new technology can both be used to the company’s advantage and the risks and liabilities the new technology poses. One of the newest advancements that will pose a challenge to employers over the next several years is that of wearables in the workplace. Such devices hold a good deal of promise but also raise numerous legal concerns.
Wearables can take many shapes and forms from fitness trackers to smart watches to GPS tracking devices to implanted microchips. And these are just the forms of wearables readily available today. Some experts predict that within the next decade smart phones will be a tool of the past as society transitions more into smaller, wearable devices for consumers that are constantly receiving, generating and disseminating data to the wearer (and to others about the wearer). And one can rest assured that within the next decade new wearable devices that have not yet been conceptualized will be in the marketplace.
The benefits these wearables present for employers are potentially numerous. Fitness trackers can be used by employers to incentivize better healthy habits, reduce the costs of ever-rising healthcare and increase productivity. GPS tracking devices can greatly assist transportation companies, retailers and other companies that rely heavily on logistics in improving efficiency. Implanted microchips can replace less secure methods of building access, computer logins and the like and provide even more detailed health information of the wearer. Of course, each industry can likely come up with numerous nuanced ways in which these wearables could benefit them specifically, especially with the constantly dropping prices of such devices.
But what about the vast array of legal issues that wearables bring to the workplace and what should companies do to control such risks? After all, for every benefit that a new piece of technology brings, it almost always brings as many, if not more, potential abuses or risks.
The Obliteration of the Already Blurry Lines
With the advent of laptops and smartphones, companies were challenged to stop employees from performing work when off the clock or to report the work they did perform. These issues led to massive amounts of wage and hour liability for employers as employees would work from home, never report the time, and then sue the employer for unpaid wages. Of course, with wearable technology, this problem only becomes more significant. One does not have to strain the imagination much to foresee a day in the near future when the already blurry line between work and home is completely obliterated by small, wearable technology that allows employees to work whenever and wherever they desire.
In order to combat this, employers will need to develop firm and clear policies about performing work at home or abroad and strictly monitor and enforce these policies to avoid liability. It is most often not enough to simply claim to prohibit such work but to then turn a blind eye and reap the benefits of the additional work. While it may be advantageous in the short term, it results in substantial liability in the long run.
The Risk of Data Breaches
It would be naïve to think that this tracking data, just like much other data, will not be the subject of data breaches. Data that tells someone where hundreds or thousands of employees have been, what their habits are, what their interests are, how healthy they are, and the like, would prove very valuable for many legitimate and illegitimate reasons. Companies that employ such devices and utilize monitoring systems will need to invest even more heavily in encryption and other protective measures to avoid disclosure of sensitive information. Failure to do so would undoubtedly lead to substantial costs and liability in the event of a data breach.
Don’t Let Using Technology Become Intrusive
Allowing technology to become too intrusive in the workplace can lower employee morale. Even those employees of younger generations that are used to their lives being inundated with technology may find it rather creepy to have their employer track their fitness and health or being able to know their location at all times. In addition to these concerns, allowing technology to completely permeate the workplace can lead to liability. Of course, there are significant concerns over employees with access to the monitoring systems to use the technology or resulting data for nefarious purposes, such as harassment. In addition, one could certainly foresee claims where an employee asserts they were being illegally discriminated against or harassed because the company tracked their fitness, location or work more closely than that of someone outside their protected class. If companies thought it was hard to treat everyone equally before, they will find it exceptionally difficult if they permeate the workplace with tracking devices and monitoring.
Also, while fitness trackers can assist in incentivizing healthy lifestyles and reducing insurance costs, they can also lead to feelings of isolation (and perhaps even discrimination) against individuals with disabilities, intended or unintended, who may be unable to participate in such incentive programs.
Similarly, while GPS tracking devices can lead to an extreme boost in efficiency and increased logistics, it too can lead to lower morale amongst the workforce and concerns over privacy. While privacy concerns are often brushed aside in the workplace as the employer has a right to know what its employees are doing while on the clock, devices that can track precisely where employees are and what they are doing at all times leads to concerns that can’t be as easily ignored. This is even more true with implantable microchips, which are always with the employee even when not at work. The potential for abuse with these exceptionally intrusive devices are even more concerning.
As is often the case in situations where a new technology poses potential benefits and risks, developing policies and following those policies even-handedly is the best way to avoid liability. Policies that specifically define whether wearables are permitted in the workplace, whether the employer will utilize wearables to generate data, where and when such tracking or monitoring will occur and how, precisely, the employer will keep such information secure, can head off many issues before they occur. Of course, even if proper policies are developed, litigation may ensure. If that occurs, no matter the realm in which the concerns arise, being able to show a comprehensive policy was followed even-handedly will almost always assist in defending such claims.
If you have questions about this article, please contact an attorney at Mallery & Zimmerman.