Wearable technology consists of clothing and mostly accessories, such as watches. These incorporate technology capable of collecting data about the state of the wearer’s health, e.g. blood pressure, or their activities, e.g. how many steps they have taken within a certain period of time.
Wearable technology can have such capabilities as the following:
- Recording video or audio input;
- Monitoring of the wearer’s vital signs, heart rate, blood pressure, blood sugar levels, etc.);
- GPS tracking of the movement of the person wearing the device, especially through doors or in a company car;
- Sending email, text messages, or other data and documents;
- Gaining access to secure areas or computer information with a readily available password;
- Linking to computer or internet networks.
Wearable devices can be used for tracking information in real time, i.e. as the data is generated by some action of the wearer. Some devices may have motion sensors that can take snapshots of the wearer’s day-to-day activities and synchronize them with mobile devices or laptop computers.
Wearable technology provides people with the ability to monitor their fitness levels, track their location with GPS, and view text messages quickly even if they are not in possession of their cell phones. Wearables are connected to so-called “smart devices”, which may transmit the information gathered from the wearable item to the smart devices and allow people to view it at the moment it is generated and at a later time as well.
Popular forms of wearable technology include:
- Various fashion accessories, such as necklaces, bracelets, and watches;
- Devices of various types that can be clipped onto a person’s clothing.
What Are Some Legal Issues Involving Wearable Technology in the Workplace?
Many employers now require workers to use wearable technology while they perform their daily work duties. These employment practices may create legal issues, such as the following:
- Violations of Employee Privacy: Employee privacy rights can be violated if they have to wear technology that communicates data to their employer, especially with regards to their location and health-related biological data, such an employee’s blood pressure and heart rate;
- Industrial Espionage: Situations may arise in which industrial espionage is made more likely, because a person can use wearable technology to record video or audio to give to a competitor without their permission;
- Hacking: Competitors and criminals might hack into wearable technology to gain access to trade secrets, to facilitate copyright infringement or to access data;
- Secret Audio and Video Recordings: Wearable technology might be used to secretly record conversations, meetings or interviews;
- Wiretapping: Issues with wiretapping and other unsound business practices.
Generally, employers are not covered by the federal Health Insurance Portability and Accountability Act (HIPAA) rules that regulate the uses and disclosures of protected health information (PHI), how to secure PHI, and what to do if there is a PHI breach.
As the law views it, employee health records maintained by an employer are not used for the kind of transactions to which HIPAA regulations apply. An employer could be regarded as a “partial entity” if it operates a self-insured health plan. If this is the case, the employer would have to implement safeguards to ensure PHI is not used for work-related operations and activities. This might present a problem with respect to health data collected by wearable technology for work-related purposes.
Complicating the issue is the fact that some states have passed laws that define a “covered entity” differently than the HIPAA for the purposes of state law. Texas is an example. In Texas, the state’s Medical Records Privacy Act classifies every organization or individual that possesses, obtains, assembles, collects, analyzes, evaluates, stores, or transmits health information in any form as a “covered entity.” This includes schools and employees.
This means that Texas employers are subject to privacy regulations concerning the health data of their employees. So, a Texas employer might not want to collect employee health data through wearable technology. Or, if it does, it would be well advised to consult Texas law regarding the practice and what kinds of uses an employer can make of the data.
If I Have a Legal Issue Involving Wearable Technology?
Virtually any technology that collects personal data about employees, including wearable technology, has the potential for abuse and violations of the many federal and state laws that regulate the workplace, e.g. the federal Fair Labor Standards Act (FLSA).
Wearable technology could make employers vulnerable to wage and hour liability under the FLSA and applicable state laws as well. For example, the California Industrial Welfare Commission defines “hours worked” for which an employer must pay their employee as time during which an employee is subject to control of the employer and/or time when the employee is allowed to work.
Experts recommend that employers do a number of things to make sure wearable technology is implemented effectively in the workplace. Many types of legal disputes can be prevented or minimized by including wearable technology terms in an employee’s employment contract or requesting that a contract include such terms.
Employers are advised to provide a demonstration of a wearable technology before they implement it, so that employees understand what personal data it collects. To the extent the technology allows adjustments to settings that limit collection of data to the information needed for the employer’s purposes, the employer should make those adjustments.
An employer should also have a plan in place to limit access to any data collected to those who need to know. In addition, measures should be put in place to ensure that those who need to know understand how to use and protect the data. Also, an employer might disclose when any data collected would be destroyed.
An employer should give advance notice to employees who are going to be asked to use wearable technology. The notice should identify the information that the technology is going to collect about them, how it is going to be used and who is going to have access to the information. An employer might include information about how the employer intends to prevent unauthorized access to the data.
Some states have laws that require notification of personal data breaches. These laws require employers to alert employees, and in some states state attorneys general or regulators, when the health information of workers is compromised by a data breach. So, an employer who implements wearable technology to collect health-related information should evaluate the physical, technical and administrative safeguards of the system where that information is stored.
Other concerns in connection with the use of wearable technology in the workplace are privacy issues, wage and hour issues, and risks associated with the Americans with Disability Act (ADA). Wearable technology raises ADA concerns, because some wearables gather information that could show that an employee has a disability.
Also, monitoring employees’ health status through wearable technology could be viewed as a medical examination or inquiry under the ADA. The monitoring would have to be job-related and consistent with business necessity if it is not going to be prohibited by the ADA.
An employer’s tracking of an employee’s location could lead employees to claim that their privacy has been invaded. Employers should probably arrange to suspend geolocation and other monitoring of employees when they are away from the employer’s premises and off duty.
Wearable technology could make employers subject to wage and hour liability under the FLSA and state law as well The California Industrial Welfare Commission defines hours worked that must be compensated as time when an employee is subject to the control of the employer and/or time when the employee is allowed to work. If an employee is monitored even while at home or outside the workplace, then that time might be counted as time which must be compensated.
The more control an employer asserts over employees, even if it is done with wearable technology, the more likely it is that an employee is going to be considered on-the-job hours. That means any time an employee is wearing tracking technology could be considered tine that must be compensated.
The same principle arguably could apply to employee’s meal and rest breaks during work shifts. If the employee is monitored during meal and rest breaks, then there could be wage and hour claims related to an employer’s use of such technology at such times.
Wearable technology in the workplace could also raise issues in connection with National Labor Relations Act protections, such as the right of employees to use devices to record unsafe conditions in the workplace. Furthermore, if a workplace is unionized, the union may wish to make the issue of wearable technology and its uses subject to collective bargaining. Employers would want to monitor federal, state and local legislation for new regulation in this area of the law.
Should I Hire a Lawyer for Help with Wearable Technology Laws?
Wearable technology is quite a recent phenomenon. This means that laws governing the technology are still developing. They undoubtedly vary from state to state and are subject to change. You may need to consult a workplace lawyer if you have implemented the use of wearable technology or plan to do so.
Your attorney can give you up-to-date guidance on federal and state law in order to help you understand your legal rights and options. If you need to develop strategies or if you have an active claim involving wearable technology, your lawyer can provide guidance and representation as necessary.