Privacy Law

Wearable technology that monitors workers could lead to legal problems for employers, lawyers say

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Employers are outfitting workers with wearable technology to track inventory, map routes through warehouses, monitor employee interactions, and keep truck drivers awake.

But lawyers see potential legal complications as wearable technology becomes more common in the workplace, the Washington Post reports.

Wearable devices could give employers access to physical data about employees with disabilities, lawyer Avi Kumin told the Post.

Philip Gordon, co-chair of the privacy practice at employment law firm Littler Mendelson, pointed out the same issue in a Wall Street Journal article (sub. req.) published in March. Data that shows a worker is less productive could indicate a disability that requires a physical accommodation, Gordon said.

Sidley Austin lawyer Edward McNicholas told the Wall Street Journal his law firm represents a company that uses retina scans to identify employees entering a secure facility. The company considered a hypothetical situation in which the scan identified an employee with diabetes. He advised the company to notify the employee with the illness if the hypothetical became reality.

Employers who focus monitoring on certain employees could also be risking a lawsuit, Kumin said. “What if someone of a certain gender, race or age is monitored disproportionally compared to their younger, whiter, male-er colleague?” he said.

Employment law associate Stan Hill of Polsinelli identified another potential problem in the Wall Street Journal article. Devices equipped with location data, or video or audio devices could lead to employers gathering information on who attended a union meeting and what was said at the meeting. To avoid problems, employers need to require workers to disable or turn in the devices when they are not on the clock.

Recording devices could also be a problem in states that require consent from everyone being recorded, the Wall Street Journal article says.

Labor economist Elise Gould of the Economic Policy Institute sees other issues. Employers could use the technology to boost profits without providing any extra pay for workers, she told the Washington Post. “What will employers do with that data? Do workers have any collective bargaining power to use this data to make sure they are getting compensated for their work?” she asked.

Gould also said the technology could lead to an erosion of trust. “It’s stressful. And psychological effects can be a cost to productivity as well,” she said.

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