New Wearable Devices Offer Unprecedented Employee Information, Raise Privacy Issues

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By Caryn Freeman  

May 19 — Employers looking for more precise ways to measure employee engagement and productivity can outfit their employees with wearable technological devices—similar to those currently worn by fitness enthusiasts—that measure brain activity, record movement and even monitor posture.

“These devices can tell you under which conditions your workforce is most productive, under which conditions your workforce is most alert and what makes them happier and more satisfied in their jobs,” Dr. Chris Brauer, professor at the Institute of Management Studies at Goldsmiths, University of London, told Bloomberg BNA May 14.

Brauer conducted a study of wearable technology and found it to be a significant boon to both productivity and job satisfaction.

“The Human Cloud at Work: A Study Into the Impact of Wearable Technologies in the Workplace,” conducted in March 2014, involved 120 employees at a media agency in London. Participants were furnished with one of three devices: a wristband to measure movement and activity; a headset to monitor brain activity; and a strap worn around the waist to improve posture by issuing a pulse to remind its wearer to sit up straight.

Offers Solutions and Raises Questions

According to Brauer, the accuracy of the data relies both on the duration of time employees wear the devices and the number of employees whose information is recorded.

He said that employers considering using this type of technology can experiment for one week every year “as a kind of sampling to indicate any patterns that can be immediately disciplined and improved.”

A second option would have employees wear the device for a year, Brauer said. At the end of the year, he asserted, the employer would “literally be able to see under what conditions each individual employee is most productive” and would then have sufficient data to make “very credible decisions.”

The technology allows employers to see which workers “are not functioning optimally” in the current workplace environment, Brauer said. “So you either change the way you do business to accommodate [those] employees or you seek other employees who are better conditioned for your environment,” he said.

Brauer allowed that along with the positive results of using this sort of technology, its use also raises an “enormous range of questions,” and employers considering it “will be faced with some very challenging decisions.”

“Organizations are going to be in extremely difficult positions in choosing between being able to harness the power of data that could give them a competitive advantage and the implications of requesting or requiring from their employees that they reveal behavioral data that extends well beyond the scope of traditional workplace studies,” Brauer said.

Several Legal Concerns

Philip L. Gordon and R. Brian Dixon, attorneys from management law firm Littler Mendelson, told Bloomberg BNA May 15 that employee consent to wear the technology is critical.

Gordon, a shareholder and co-chair of the privacy practice group in Littler Mendelson's Denver office, said that employee consent will be defined by the explanation of what the device does and what information it collects, where the information is stored, how the information will be used and to whom the information will be disclosed to and under what circumstances.

“Organizations are going to be in extremely difficult positions in choosing between being able to harness the power of data that could give them a competitive advantage and the implications of requesting or requiring from their employees that they reveal behavioral data that extends well beyond the scope of traditional workplace studies,” Dr. Chris Brauer told Bloomberg BNA.

“Those are all going to be facts that the employer needs to provide if it wants to be able to rely on the consent at some future date to defend against litigation,” Gordon explained.

The attorneys also raised concern over how intrusive the devices are in measuring mental or physical ability, and they warned that employers that use this technology should consider whether there is potential risk of violating the Americans With Disabilities Act.

Dixon, a shareholder in Littler Mendelson's San Francisco office, posed a situation where an employer uses a brainwave sensor and finds that an otherwise well-performing employee “is susceptible to some interruption of mental activity” that poses a risk to the rest of the workplace. “Now the employer is stuck in a hard position,” he said.

“I could see there being a risk that the brainwave measuring or the posture device could be viewed as a medical exam under the ADA because, particularly the brainwave device, may have the capability of identifying whether someone has a mental impairment,” Dixon said, adding that employers “really have to dig into how this technology works.”

He urged employers to be very careful about what promises they make to employees about why the information is being gathered and what it might be used for.

“The employer might have said, ‘we are going to use this for enhancing performance' and now all of a sudden the employer needs to address a health and safety issue,” Dixon said.

Minimizing Risk

If employers are deliberate and think through the process, they should be able to mitigate the risk, Gordon said. “A lot of times problems occur because the proper controls are not put in place up front,” he said.

Gordon and Dixon recommended that employers considering using this type of technology should:

  •  understand the technology and all of its capabilities;
  •  whenever possible, use de-identified and aggregate data to reduce privacy risk; and
  •  make sure the list of people who have access to the data is limited to those who need to see it.
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    Workers Used to Being Tracked

    Jeremy Ames, president of Hive Tech, a human resources information systems consulting firm in Medway, Mass., and a member of the Society for Human Resource Management's technology & HR management panel, told Bloomberg BNA May 19 that bringing these devices into the workplace is worth the risk because “employers have the right to collect data about their employees that will allow them to get the most return on their investment.”

    Ames warned, however, that employers that use these devices may be tempted to use them for reasons beyond those intended.

    He added that employees used to having their movements tracked likely will not balk at these new devices.

    “The more consent we give, the more we are tracked,” Ames said. “The bottom line is that we're becoming increasingly accustomed to being tracked; it isn't going to cause as much alarm as it once would have.”

    What Are Employees Up To?

    Ben Waber, co-founder, president and CEO of Sociometric Solutions, which has developed a badge that uses a variety of sensors to measure employee movement and tone of voice, told Bloomberg BNA May 14 that fundamentally this technology gives employers a way to understand, on top of existing behaviors, what people actually do at work.

    “The real problem is employers often don't know what people are doing at work, and that's the core of business so we need to measure that,” Waber said.

    Waber said he hopes that the information provided by these new devices gives managers the information they need to maximize the configuration of the workplace. “It will enable subtle changes in the work environment,” he said. “It will help organizations identify what shapes interactions and then change the environment to support those interactions.”

    “It's going to become a primary management tool,” he added. While the technology is beginning to gain some traction, Waber said, it “isn't anywhere near where it will be in two years.”

    To contact the reporter on this story: Caryn Freeman in Washington at cfreeman@bna.com

    To contact the editor responsible for this story: Simon Nadel at snadel@bna.com

    “The Human Cloud at Work” study can be found at http://www.rackspace.co.uk/sites/default/files/Human%20Cloud%20at%20Work.pdf.