An interesting video showing how courier company DHL incorporates augmented reality smart-glasses into its warehouse operations launched a session on smart technology at the American Bar Association’s national symposium on technology in labor and employment law. Employees equipped with “vision picking” glasses scan a package’s bar code and then receive color-coded warehouse maps and related task information in their field of vision, telling them exactly where that package should go.
This is just one example of how a “network of technologies stitched together in a very specific way” can meet the unique needs of a specific business, panelist Joseph Mariani of Deloitte’s Center for Integrated Research explained.
Other examples include the use of ID badges to track employee proximity and location in the workplace in real time, and sensors to measure core temperature, heart rate, tone of voice and stress levels.
While these technologies are exciting to employers for their obvious potential to increase workforce efficiency, panelist Clement Tsao, an associate with Cincinnati-based Cook & Logothetis and former union organizer, has “many concerns” that these technologies could have an adverse impact on employee privacy rights and attempts to unionize.
“There’s not much case law,” he noted, and it’s unsettling to employees to have their employers track every aspect of their day.
According to Tsao, the current trend is an erosion of employees’ reasonable expectation of privacy each time an employer is able to articulate a business interest for the incorporation of wearable or smart technology.
Employers must be particularly cautious of coercive surveillance that impinges on workers’ right to assemble, he said. For example, real-time tracking of delivery drivers or office employees might provide employers with information on employee attempts to organize that could be used to single out and retaliate against specific employees.
“The hypo I’m concerned about,” Tsao said, is a situation where an employer has a right to know where its workers are but retroactively reviews earlier collected data for improper purposes, such as to gather intelligence on a union election filing.
Tsao noted that there’s likely to be more litigation on these issues and believes employees may need to look to state legislatures to define the boundaries of privacy expectations.
A Matter of Health
The increased use of wearable technology in conjunction with the growing popularity of employee wellness programs is yet another area where employers must proceed with caution.
Panelist Kevin Haskins, an associate with Preti Flaherty, noted that sensors in wearables have become very advanced, with some measuring sweat, glucose and other sensitive biometric data.
In the near future, employers using such devices to collect information on employees potentially could violate restrictions on medical exams or disability-related inquiries under the Americans with Disabilities Act or other laws designed to prevent discrimination or protect medical privacy.
Collecting employees’ sensitive medical data also creates additional vulnerability to discrimination claims, giving employee-plaintiffs more room to argue that the proffered reason for an adverse employment action was merely pretext for disability, genetic or other prohibited forms of discrimination, Haskins said.
To prevent this, Porter Wright partner Brian Hall suggested that employers consider hiring a third party to manage any medical data collected in order to shield themselves from claims related to knowledge of employee medical issues.
Employers also may run afoul of the Genetic Information Nondiscrimination Act if they ask improper medical or genetic history questions prior to issuing wearable tech to employees, Haskins said.
Finding Common Ground
Although wearables will continue to raise potential employee privacy issues, communication and collaboration between employers and employees may allay many of these concerns.
Both Haskins and Tsao suggested that employers clearly communicate what the technology is, what data is being collected, and how the technology benefits employees and the company. Smart technology shouldn’t be implemented for its own sake—rather the “employer should be using it surgically to solve a specific problem,” Haskins said.
Tsao pointed to models for rolling out technology through a collaborative process. For instance, United Parcel Service drivers negotiated a contract whereby the employer is precluded from relying solely on data collected from GPS tracking to impose discipline without corroborating evidence.
The National Basketball Players Association negotiated the creation of a joint committee on wearable technology as well as player access to information on the type and benefits of biometric information collected by their teams.
Tsao believes these models of employer/employee collaboration on new technology rollouts would be just as beneficial in non-union workplaces.
So what does the future hold for wearable tech in the workplace? Mariani suggested that things will get interesting in about five years due to advances in augmented reality and artificial intelligence that will allow massive amounts of data to be pulled in a natural and seamless way.
The potential impact of these technologies on wage-hour litigation is particularly noteworthy. The panel suggested that if an employee’s work is being video-recorded or tracked in real time, the technology becomes useful for both sides to prove or disprove a variety of employee wage claims, such as overtime eligibility, misclassification or off-the-clock work.
Similarly, questions arise as to how FLSA record-keeping requirements apply to wearables data. How long must employers maintain visual recordings from an employee’s augmented glasses? How will they be stored? For now, Tsao said, many of these devices create too much data for humans to weed through in any meaningful way. Don’t worry though, they’ve got machines for that, too.
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