Wearable technology in the workplace has evolved far beyond 20th century relics such as wireless headsets and walkie-talkies. Employers now can track and analyze proprietary measures of worker productivity and other results-driven metrics through devices worn on the wrist or elsewhere on the body. Leveraging robust streams of real-time data can implicate various employment laws and associated legal responsibilities to employees. In addition, collected data may be subject to a preservation duty, discoverable in litigation, and, in some cases, relevant to legal claims by employees.
Wearable technology can both foster and challenge employment law compliance. The Americans with Disabilities Act (ADA) requires employers to engage in an interactive process with qualified employees, to identify appropriate disability accommodations. Employers who aggregate data on employee productivity through wearable technology may use such metrics to assess whether an employee’s desired accommodation, or any accommodation, is reasonable. Data could also be used to document that a desired accommodation poses an undue burden on business operations.
On the other hand, an employee may rely on productivity data to argue that a termination decision for poor performance was pretext for unlawful discrimination or retaliation. Employers that rely on objective productivity data to make day-to-day personnel decisions should do so consistently and document any deviations by identifying other legitimate business reasons. Moreover, should an employer rely on an employee’s objective data for a personnel decision, the employer may be obligated to preserve and produce the data of other employees for comparison purposes.
Technology that tracks employee movements is potentially problematic in the context of protected concerted activities. Employees have the right to gather to discuss unionization, or other terms and conditions of work, on breaks and outside working hours, without employer interference or coercion. To reduce the risk of a claim of interference or chilling of protected activities, employers should disable or require employees to surrender wearable technology outside of working time.
Finally, employers should exercise extreme caution before using wearable technology to assess employee productivity by gathering biometric data. Such data most likely must be gathered and stored in accordance with HIPAA regulations governing protected health information, and its use in employment decisions may trigger the requirements of the ADA and the Genetic Information Nondiscrimination Act (GINA).
While there are endless possibilities for leveraging technology to assess employee productivity, care must be taken to implement advancements without discriminating against or disparately impacting protected individuals.
For an additional examination of wearable technology and the implications on cybersecurity from the perspective of Polsinelli’s Privacy and Data Security attorneys, please visit the PolsinelliOnPrivacy blog here.