Internet of Things a Spyglass on Workers?

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Chris Opfer

Sept. 19 — Congress is showing some bipartisan support for the “internet of things,” but some worker advocates say lawmakers may be overlooking the employee privacy implications of technological advances in the workplace.

The House Sept. 12 passed with overwhelming bipartisan support a resolution (H.Res. 847) calling on policy makers to come up with a strategy to encourage the internet of things.

The buzz phrase refers to the increasing power of technology to allow machines and people to communicate with each other via linked sensors, whether it’s a pacemaker that sends performance information to doctors or crop sensors that tell farmers when it’s time for more water.

The resolution’s sponsors describe it as the beginning of a conversation about how to harness technology to increase efficiency and productivity in nearly every aspect of life. IoT applications have the potential to create as much as $11 trillion in economic impact per year by 2025, according to McKinsey & Co.

Still, some advocates are concerned about employers using the same advances to track their workers to an extent never before seen. That includes monitoring workplace communications and movement, as well as following employees’ off-the-clock activities.

“The capabilities created by today’s technology are in many ways being used to carry out very invasive surveillance of workers,” Jay Stanley, a policy analyst for the American Civil Liberties Union, told Bloomberg BNA. “Obviously, employers do have legitimate interests in monitoring their workforce and performance, but all too often we see that technology is used to create an atmosphere of pervasive surveillance and intimidation.”

Monitoring Messages

The House resolution, like a similar measure (S.Res. 110) passed in the Senate last year, doesn’t require lawmakers to actually do anything. Instead, it’s meant to show there’s bipartisan support—the House measure passed 367-4 and the Senate resolution passed by unanimous consent—for developing hyperconnectivity among people and machines across the country.

“I think Congress should be on record as supporting the advancements in technology that have occurred in the last decade or so,” Rep. Leonard Lance (R-N.J.), the resolution’s sponsor, told Bloomberg BNA.

The digitization of machines has the potential to increase efficiency on the job and to maximize productivity by making it easier for businesses to monitor their workers. Technological advances may also keep workers safer on the job, including by using sensors to keep trucks and other equipment from colliding with one another and to alert factory employees of potential safety hazards.

The resolutions don’t devote much ink to personal privacy protections, despite worries that increased connectivity may lead to abuses in the gathering and sharing of data.

Many of those concerns have largely centered on the tracking of e-mails and other electronic communications on the job. Courts have generally affirmed employers’ rights to monitor what their workers are up to when using company equipment, including communications made through private accounts.

“The technology has gotten ahead of the law in this area,” Stanley said. “It’s been overwhelmed by the vast surveillance powers of the technologies that we have now and has not been adjusted to compensate for that.”

The Electronic Communications Privacy Act became law in 1986, well before the dawn of the smartphone. It has been interpreted to limit the interception of electronic messages, but includes a number of exceptions that allow employers to keep tabs on their workers during the workday.

Employers that provide the servers on which the workers communicate are generally permitted to monitor messages. They’re also empowered to intercept and view communications in situations in which workers have consented to such monitoring.

Meanwhile, courts have largely concluded that employers have a right to use video cameras and other monitoring technology to track workers’ physical whereabouts on the job. That power is limited by decisions banning the use of cameras in bathrooms, locker rooms and changing areas without a pressing business interest.

How Close to Watch?

Although employers have the right monitor their workers to some extent, they may want to think twice about how closely they are watching. They also may want to consider notifying workers first, according to Jonathan Segal, a partner at management firm Duane Morris.

“Just because something isn’t illegal doesn’t mean it’s a good idea,” Segal told Bloomberg BNA. “If something is legal but employees perceive it as overreaching, that’s exactly where unions step in.”

The implementation of cameras and other monitoring devices is likely subject to collective bargaining in union-represented workplaces, he said. Employers that aren’t unionized also run the risk of generating complaints, litigation and a possible a union organizing drive.

That’s not to mention the possible hit to worker morale that can come with monitoring such as the tracking of employee movement throughout the workday with identification badges and global positioning systems, according to Segal.

“I don’t think the average employee is going to respond positively to the idea that there’s someone who knows where you are every minute of the day,” he said. “It can feel like house arrest.”

Segal said that’s true even in situations in which an employer tells workers it won’t actually look at monitoring information unless a performance or security issue comes up. “If you say we’re only going to look at it when we need to, no employee believes that,” he said.

Employer-issued cars and mobile phones raise particularly tricky questions about what’s legitimate tracking and what’s an invasion of privacy. An employer may have a legitimate reason to track how and where that equipment is used during work hours, but Segal said monitoring is tougher to justify when workers are on breaks or otherwise off the clock.

“It’s a little bit different with a company-owned vehicle because some employers say you can’t use it other than for going to and from work for liability and insurance reasons,” he said. “But, if you put GPS on a cell phone or a car, you may learn something that you don’t have a right to know and what you may even be better off not knowing.”

Segal gave as an example a pregnant worker who takes a company-issued phone with her to a doctor’s visit. If that worker is later fired and sues for discrimination, she may point to GPS-tracking information as proof that the employer was aware of her pregnancy.

‘Vigilance’ Necessary

Lance and resolution co-sponsor Peter Welch (D-Vt.) told Bloomberg BNA that they are aware of some of the privacy concerns that the internet of things raises for both workers and consumers of internet-equipped products.

“When you have any new technology, you’re going to have issues of privacy and that’s something we need to be vigilant about,” Lance said.

Their main focus, however, is making sure that lawmakers don’t slow the innovation process.

A separate measure ( H.R. 5117, S. 2607) approved by the Senate Commerce, Science and Transportation Committee in April would require the Commerce Department to convene a working group “to provide recommendations to Congress on how to appropriately plan for and encourage the proliferation of” the internet of things.

The legislation also directs a steering committee to advise the working group on privacy issues.

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.