Recently I attended the American Bar Association’s (“ABA”) 2016 mid-year National Symposium on Technology in Labor and Employment Law (“Conference”) in Washington, D.C. The Conference highlighted a number of technology related issues that should be of interest to employers, such as the use artificial intelligence in the workplace, cybersecurity, and new trends in the National Labor Relations Board’s technology-based decisions and rulemaking.
One segment of the Conference that I found particularly interesting was "Technology in the Workplace: What’s Out There, What’s Coming, and Why You (Really) Need to Care," presented by Kate Bischoff and Heather Bussing. It was a discussion regarding risks employers face when monitoring, tracking, and recording employees. Indeed, today’s technology allows employers to communicate with employees wherever they are and at any time of the day. Tracking and monitoring devices include cellular phones, wearables such as smartwatches and fitness trackers, radio frequency identification (“RFID”) tags, and work badges implanted with minute microphones and transmitters. Monitoring employees, whether during work hours or non-work hours, can expose employers to legal risks even if the monitoring is intended to improve business operations, improve employee wellness, or enhance workplace safety conditions.
The rapid advancement of technology has made monitoring, tracking, and recording employees easier and the data more accurate. Despite such technological advancements, however, the law is still catching up. Some states, however, already have monitoring laws in place. Delaware, for example, has passed legislation requiring employers to notify employees if the employer uses technology to monitor their activities. Delaware’s law covers electronic monitoring of phone conversations, email, and internet use. The law, however, is silent on an employer’s use of global positioning systems (“GPS”) or other tracking devices. Also, under California law, a monitored employee can sue their employer for invasion of privacy if the employee has a legally protected privacy interest and a reasonable expectation of privacy.
In addition to using location tracking devices to monitor employees, today’s technology can allow employers that issue wellness trackers to employees as part of an employee wellness program to view and use employee biometric data. These devices collect such data as the number of steps a person has taken, heart rate, quality of sleep, steps climbed, and other personal metrics. Nevertheless, employer access to such data is largely forbidden under the Genetic Information Nondiscrimination Act (“GINA”). Moreover, the Health Information Portability and Accountability Act (“HIPAA”) limits access to and the sharing of health information acquired by employers.
While the line between productive employee monitoring and unlawful surveillance is not entirely clear, a few things are absolutely certain. Technology in the workplace is here, it can be used to monitor almost anything, and it is not going away.
To mitigate some of the risks that come with monitoring, tracking, and recording employees, employers should:
- Exercise caution and common sense when adopting novel methods of watching, tracking, and listening to employees regardless of underlying business, health, and safety reasons.
- Only allow the employees to view their own specific biometric data if employers issue smart watches or wellness trackers, and collect such biometric information, as part of an employee wellness program.
- Track and monitor new developments in the law at both the federal and state level and revise employer policies accordingly.