Wearable Technologyin the Workplace:

Managing Legal and Business Risks

Tracy L. Moon, Jr.tmoon@laborlawyers.com

(404) 240-4246

What is Wearable Technology

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• Technology and functional materials that are attached to the body, unsupported by the hands

• Usually capable of connecting to the internet

Wearable Technology: Basics

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• Fitness/activity tracking devices

• Smart watches

• Smart eyewear

• Health wear

• Smart jewelry

• /A

Wearable Technology: Basics

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• Sleep monitors

• Healthcare and rehabilitation

• Pet fitness monitors

• Clothing materials

• Baby monitors

Wearable Technology: Examples

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• Apple watches

• Fitbit Surge and Charge

• Skully motorcycle helmet

• Earbuds with biometric sensors

• TAG Heuer smartwatches

• Pebble Time

• Digitsole

• Oculus Rift

• Quell

• FITGuard

Poll Question #1

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Do you believe that wearable technology (in the future) will give employers ways to significantly improve productivity and profitability?

- Yes

- No

Employer Uses

Benefits of Wearable Technology

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Benefits of Wearable Technology

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• Increased productivity

• Improved Customer Service

• Improved Accuracy

• Monitor Fatigue

• Training tool

Benefits of Wearable Technology

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•Prevention of workplace accidents

•Better tracking of workplace injuries

•Keep tabs on worker productivity

•GPS and geo-fencing technology to track employee and equipment location

•Smart glasses can free up both hands and warn employees of hazards

•Employee training using virtual reality

- Google Cardboard- Oculus

Insurers & Medical Care Providers

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• Doctors could obtain a detailed record of the statistics of their patients.

• Doctors could use wearable technology during the active treatment of patients.

• Doctors could treat patients in remote locations.

• Reducing injury/illness-related expenses

• Reduce recovery time

Business Considerations & Risks

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Business Considerations

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• Detection: Not readily detectable in the workplace.

• Productivity: How do you monitor use of wearable devices in workplace?

• Support : Increasing demands on IT departments to integrate wearable devices.

• Cost/Benefit: Do wearable devices reduce expenses and improve efficiency?

• Safety: Does the use of wearable devices increase risk of injury or death?

Business Considerations

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• Privacy: Different expectations of privacy

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Theft: Wireless capability; limited data security features may result in unauthorized access to corporate data systems

Theft of Private & Company data and secrets can be by…

• Current disgruntled employees

• Employees about to compete with you or go to work for competitors

• Competitors

• Vendors/suppliers

Business Considerations

Business Considerations: Data Breach

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Poll Question #2

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• What percentage of senior business executives believe malicious or negligent insider/employees are the primary cause of data breaches?

A. 80%B. 55%C. 30%D. 10%

Business Considerations: Data Breach

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55% The percentage of C-Suite Executives surveyed that

believe malicious or negligent insider/employees are the

primary cause of data breach

Source: IBM Analytics

Business Considerations: Popularity

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• Estimated 90 million wearable data devices shipped to consumers in 2014

• 485 million units by 2018

• Many will & do bring such devices into the workplace

Poll Question #3

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• Do you believe that employee use of wearable technology in the workplace presents legal challenges for employers?

-Yes-No

Legal Considerations

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Legal Considerations: Privacy

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Where an employer has access or stores the data obtained from the wearable device, they must consider:

•Video Monitoring laws

•Audio Recording laws

•Data storage laws

•Right to privacy laws

•National Labor Relations Act

Legal Considerations: Litigation

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Hypothetical 1:

•An Employee with high blood pressure claims to have been denied certain jobs due to condition. The employee claims that the employer knew about his condition due to the data collected by the wearable technology the employer uses.

Legal Considerations: Litigation

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Hypothetical 2:

•Employee is distracted by a wearable device and causes an injury or accident.

Legal Considerations: Litigation

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Hypothetical 3:

•Employee files a EEOC claim for sexual harassment. The employee claims a supervisor uses a wearable device in manner to cause a hostile work environment.

Legal Considerations: Litigation

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The data collected may be:

•Discoverable evidence

•A tool to apply in settlement negotiations

Legal Considerations: Agency Oversight

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The use of wearable technology may invite increased scrutiny from government agencies.

•Does wearable devices violate HIPAA or GINA

•Will use of wearable device sound the alarm for OSHA, the NLRB or the EEOC?

Legal Considerations: Wage & Hour

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Consider wage & hour issues of what truly constitutes work time.

• Ex: Whether an employee wearing smart eyewear provided by her employer during lunch or running a personal errand is “work-time”

Possible Solutions

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Possible Solutions: Due Diligence

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• Understand the technology

• Research the law

• Consider the likely dangers

• Perceptions of employees and third parties

Possible Solutions: Notice

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Review & Update Employee Handbook

And Policies

Possible Solutions: Policy

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Strict guidelines on:

• when technology may be used• how technology may be used• authorized users of technology• Storage and dissemination of data

Explicitly prohibit inappropriate recording and transmission

•Be aware: Section 7 of the NLRA protects the rights of employees to photograph and make recordings in furtherance of their protected concerted activity, including the right to use personal devices to take photos and make recordings.

Possible Solutions: Policy

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Update:

•Privacy & confidentiality policy

•Machine operation policies

•Vehicle operation policies

•Collection and use of company and customer information policies

•No discrimination, harassment and retaliation policies

•Policy addressing reasonable accommodation

•Policies covering use and misuse of company property

•Policies covering electronic communications and social media use

•Policies covering appropriate workplace attire

•Safety and health program and policies

Possible Solutions: Training

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• Obtain written acknowledgement/consent

• Conduct training on proper use of technology and etiquette

• Train managers and supervisors on policy enforcement processes and procedures

• Do not treat non-users differently

• Discuss personal vs. business use of devices

Poll Question #4

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• Do you expect wearable devices to be more widely used by employees than laptops within 10 years?

- Yes- No

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Thank You!

Tracy L. Moon, Jr.tmoon@laborlawyers.com

(404) 240-4246

Thank You!

Contact us at 1-855-XPERTHR or inquiries@xperthr.com

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