Wearables: Privacy and Discrimination Considerations for Employers

June 27th, 2016 | By Jules Halpern Associates | Discrimination, Employee Performance, Privacy Rights, Technology, Wellness Programs

Incorporating wearable technology into the workplace can help employers monitor their employees’ health and productivity; however, access to employees’ personal data raises concerns involving privacy and discrimination. Wearable technology, more commonly referred to as “wearables,” is a category of devices that are worn by individuals. These gadgets have a wide range of capabilities, from taking photos and videos to tracking fitness information. Wearables come in all shapes and sizes, such as eyeglasses that display real-time data or small squares that you can clip onto a pocket, but most people use versions that are designed as armbands or watches.

Commonly used by runners and health enthusiasts, wearables are increasingly being introduced into employee wellness programs. The devices allow employers to track the amount of activity a particular worker has done in a given workday, offering new ways to measure employee productivity. Furthermore, wearing a fitness-tracking device makes it easier for employees to share their physical activity and rest data with health-insurance providers, which may lead to lower rates. Although wearables provide benefits to both employers and employees, employers need to be aware of potential issues that could arise.

Privacy Concerns 

An individual’s health and fitness information are extremely personal, and many people are uncomfortable with anyone other than a health professional knowing their “stats.” Currently, about 40% – 50% of all employers that have wellness programs use fitness trackers. In these programs, use of the trackers is completely voluntary and the data received from the wearables is usually sent to a third party so that the employers do not have direct access to employee information. Using an outside source to manage the tracker information provides workers with a reasonable expectation of privacy and allows them to participate in the wellness program without fear that their information will be seen or used by their employer.

Wellness programs are not the only places where wearables are being used for work. An increasing amount of employers are starting to require their employees to wear fitness-trackers while performing physical activities on the job, such as stocking shelves. When employers implement mandatory wearable use in order to track their employees’ activity levels and gauge productivity at work, privacy issues increase dramatically.

Courts have not ruled on whether an employer can legally mandate the use of wearables by employees while on the job. However, if the use of tracking devices is allowed, there will be limitations on how and why employers can use them.

By reviewing tracked information on charts and graphs, an employer may be able to notice a decline in a particular employee’s activity levels before the worker has realized that their levels have decreased. The decrease in activity could be the result of an illness that the employee does not know that he or she has. Some would argue that the employer is obligated to inform the employee of the concern; however, others might see this as an invasion of privacy since the information was meant to be used solely for job-related purposes.

In addition to gathering health information, some wearables may also record information on the wearer’s location, as well as audio or visual data. In the past, employers have used vehicle-tracking devices in order to monitor employee productivity for jobs involving shipping; however, placing a tracking device on a car or truck is not as invasive as having one on an individual. Some vehicle-tracking devices have the ability to record audio and video, but this is only inside the vehicle.

Wearables, on the other hand, can follow employees everywhere they go. Employers could be accused of stalking and spying on their employees if any of the recording features are left on while the worker is in a union or other private meeting. Additionally, employers may potentially face sexual harassment claims if recording features are operating while an employee is using the bathroom or changing in a locker room.

Discrimination Concerns

While reviewing an employee’s data, an employer might notice potential health concerns. For example, if an employee consistently scores poorly on activity measures, an employer might reason that the employee has a physical disability that is preventing them from performing at the desired levels. Once the suspicion arises, the employer and employee may need to discuss the possibility of there being a disability. If the employee has a disability and has not spoken up about it, the employer may still be responsible for not providing proper accommodations, especially if the employer had adequate information to suspect an issue.

Additionally, if an employer uses the activity levels as part of performance reviews and hiring and termination decisions, the employer runs the risk of being accused of discrimination against someone who has a disability or is less healthy.

Minimizing Risk

If an employer wishes to require employees to use wearables in the workplace, the employer should first provide workers with notice about how the technology will be used and what information will be gathered. Next, the employer should set very clear parameters for the use of the gadget, such as when and where the recording features must be turned on or off. Additionally, employers need to strongly consider what features they want on a wearable. Having a low-tech gadget that only tracks movement and not audio or video could help mitigate some privacy concerns. Employers should emphasize that the information received from the tracking device is used exclusively for job-related purposes. Furthermore, employers need to limit the amount of information they receive from the wearables, only using as much data as necessary to monitor productivity.

Jules Halpern Associates LLC

Workplace and Education Law Advisors

Jules Halpern Associates LLC
JULES HALPERN ASSOCIATES LLC is a boutique law firm committed to serving our clients in all facets of their workplace issues. We provide personalized, practical advice that resonates with our clients’ business objectives.
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Jules Z. Halpern

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