As technology advances, so does an employer’s ability to monitor its employees’ conduct and work performance. Some employers are outfitting employees with wearable technology that monitors the employee’s biometrics and tracks their location. This wearable technology typically comes in the form of fitness trackers (like a FitBit), wristbands, access cards, and smart watches. For companies with large or broadly dispersed workforces, this technology provides a level of monitoring otherwise unavailable until now. Some companies use the information in conjunction with employee wellness programs, which Molly Gwin addressed. In addition, for companies that employ individuals who drive frequently, these devices provide a tool to track whether an employee is speeding or diverting from their assigned route. This can provide critically important information to help an employer reduce its liability and lower insurance costs.
While this new technology comes with many benefits, it may come at a cost beyond that of the device itself. Usage of these “wearables” can expose employers to legal claims and raise ethical questions about the use and collection of sensitive, personal data. For example, a device that monitors employee productivity may give rise to a claim under the Americans with Disabilities Act. An employee could argue this information triggered the employer’s duty to engage in an interactive conversation regarding a potential reasonable accommodation. Additionally, employers may inadvertently monitor employees within a protected class disproportionately, which could give rise to discrimination claims. Regardless of how the employer uses the datra, it may ultimately become evidence in a lawsuit, and employers need to consider that potential carefully.
In order to avoid liability for a lawsuit, employers should carefully consider the costs and benefits of instituting a wearable technology policy. In addition, the employer needs to consider how it uses the data it collects, and how the data is stored. For example, having a third party collect and store the information, or anonymize it where possible, may reduce these risks. Employers would also be wise to provide employees a clear policy stating the job-related reason for collecting the data, and the limits on its use. Additionally, permitting employees to disable the device while “off the clock” is likely a smart move.
If you would like Isaac Wiles to assist your company in crafting a wearable technology policy that reduces liability exposure, please contact Issac Wiles.