HR Legal Concerns Surrounding Wearables

Wearables look like they will be en vogue for seasons to come. They can be used for a variety of purposes – tracking fitness, improving posture, and even measuring air quality.  But when employers use wearable technology to evaluate activity, there may be legal concerns. Christin McMeley sat down with Bloomberg BNA to discuss the surrounding privacy issues.

Employers have been looking at monitoring employees and employee privacy issues for quite some time. ‘I think that the new technology has the potential, and it is in many instances, to be more invasive than some of the other forms of monitoring, but the issues are the same,’’ she said.

‘Does the employee have an expectation of privacy? What kind of notice is the employer going to give to defeat that expectation of privacy?’’ she asked. ‘The legal issues can be dealt with,’’ she said. ‘‘I think that it is really more about the culture of the workplace and workplace morale.’’

The question for employers, she said, is: ‘‘How are employers going to use this technology to benefit both the employee and the company and get buy in from employees?’’ McMeley said that when incorporating wearables into the workplace, employers should set clear parameters covering the use of the devices, including what the information will be used for and how they are going to give notice to the employee.

Employee Consent

McMeley said an employee can give consent, but added, ‘‘if you have unions in certain locations, this certainly will be a point of notice and negotiation with your labor force.’’

Whether employee consent unpins an employer’s risk of violating employee privacy restrictions will depend on the type of information collected and how it is being used, McMeley said. ‘‘In general if the device is the company’s property, it is being used for business purposes and the employer gives notice to the employee that they have no expectation of privacy, [the employer] defeats any expectation of privacy that [employees] have. Then the employer is going to be able to do a lot of things with that information,’’ she said.

Minimizing Risk

McMeley said it would be prudent for employers to consider the privacy rights of employees when using wearables in the workplace. ‘

‘If companies start to use this technology, for their own legal protection they are going to want to make sure they have given notice to the employees, that they have policies about how the technology will be used, what information will be collected and that the policies are employed and enforced consistently across the workforce,’’ she said. ‘‘When you look at how wearables have been deployed in beta testing, it is in groups,’’ McMeley said.I think that it gives employees a lot of comfort to the extent that [the employer] will not be reviewing individual information.’’ ‘‘I think that is where notice, while it may not legally required, is a best practice,’’ she said. ‘‘Get the proper consent from employees to use that information and to use it to the employee’s benefit.’’

Although [wearables] are very new and are more intrusive, she said, employee privacy has been an issue for quite a while. ‘‘At the federal level, we are so slow to do anything in the privacy or information security space, but look at the response by state legislatures when employers started accessing social media accounts. You had a rash of state legislation introduced and passed to prohibit access, except for fraud investigations or for other investigations. I could see [wearables] spawning a lot of this type of state legislation,’’ she said. Continue reading BNA’s full analysis here and/or watch Christin’s short interview.