Did you get one? Did you use it? Do you still use it? Do you know someone who got one? Have you seen someone with one on? Chances are one of those answers is a “yes” if I tell you that the “it” is one of the wearable technology bracelets that record something you are doing (i.e. Fitbit) or vying to replace your phone and tablet (i.e. Apple Watch).
They are the latest thing and they’re fun – plus they may motivate you to exercise or even motivate yourself through a bit of healthy competition with your neighbor. But what happens when the friendly competition is with your co-worker and your job may be on the line and it’s not so friendly anymore? BYOD is so last year.
Today our clients are starting to worry about and struggling to deal with BYOW – Bring Your Own Wearable. Ready to advise them on the intersection of wearable technology and employee privacy? Most of us aren’t. So here is a brief primer to get you past the starting point of this legal minefield for employers – some lingo, some laws, some insurance premium arguments, some liability concerns, and some risks. BTW, this is one area that is bleeding edge, not cutting edge, when it comes to the legal perspective so make sure to keep an eye out on the changing legislative and regulatory environment on this one.
Setting the Context
Chances are top tech names like Google, Apple, Microsoft, Intel and Motorola are familiar to you. They are big in computing and mobile devices so it should not come as a surprise their foray into the wearable technology market where the minutes tick away in gold – according to Business Insider, “We estimate the global wearables market will grow at a compound annual rate of 35% over the next five years, reaching 148 million units shipped annually in 2019, up from 33 million units shipped this year.” Translated it comes out to billions of dollars annually, topping off at over $11.6 billion by 2020. The majority of the sales are currently to consumers. According to Pew Research 21% of Americans use self-tracking techniques to understand health or improve cognitive performance. However, that is set to change as businesses learn about the benefits to having a healthier workforce. Forbes quotes that by 2020 17% of wearable device sales will originate from industry customers. But whether or not your business client decides on buying the wearable, employees who are using them personally will be bringing them to the office. And then what?
Is it About Increased Health or Decreased Premiums?
For many companies health care insurance costs are a big-ticket item on their budget. Being able to negotiate for lower premium costs that may or may not be shared with employees is a big incentive for why businesses are looking at wearable technology as an integral part of their wellness programs. Healthier workforce, lower healthcare costs. The logic stems from the concept that many health issues are preventable. “A large portion of today’s $2.6 trillion health care bill is driven by behavior; in particular, bad diet decisions that lead to obesity and diabetes,” Kelly Barnes of Price Waterhouse Coopers states.
There are already examples of companies putting wear tech to use – Appirio and BP both claim that their insurance costs have gone down by 5-6% respectively. Oscar, United Health, Humana, Cigna, and Highmark Insurance have all created subprograms that encourage wear tech participation – helping companies develop programs that offer incentives to employees ranging form lower insurance premiums that the employee pays to gift cards for Amazon and Wal-Mart, movie tickets, etc. (Id.) Most companies have taken a carrot approach to employee wear tech, offering incentives vs. penalties – but will those come later?
But companies also say it’s not just about the money. These wearable technologies offer advantages to the employees from ensuring that they are not fatigued (healthcare) to having information on-site without looking for manuals or carrying a tablet (Google Glass in manufacturing and repair) to making the employee aware of when they are at the peak of their cognitive functions (through EEG sensors in headbands) to increase their productivity. A lot of these are outlined in Rackspace’s “The Human Cloud at Work Report 2014.”
But how do employees feel about being monitored with the wearables? The answer to that question is mixed.
According to Conerstone OnDemand’s “State of Workplace Productivity Report” 2014 – 66% of employees are willing to use wearables tech if it enabled them to do their jobs better (up from 58% in 2013). It seems that the employees above are concerned about doing their jobs better not necessarily in getting healthier or in having their companies review their health data. Data collected on health is a sensitive topic – those handling and managing such data will likely want to use software solutions (learn more here) to help them process this data effectively and compliantly. Employees also seem to distinguish between aggregate data on the entire workforce (acceptable) and individual data of a single employee (not so acceptable). Employees want to know exactly what information will be collected, when it will be collected (during work hours, off-duty time), how it will be collected, who will see it, how will they see it, how the data will be used, how the data will be secured, etc. Do employees necessarily want to allow their bosses into the personal lives when they are not in the office – weekends, vacations, etc.? Can this employer endorsed use of wear tech meld the employee’s work and life into a lifestyle where “people analysis” determines decisions on career, hiring, performance, termination?
Will “biometric CV’s” become as important as your resume? “Wearable technology will change how we recruit, interview, and onboard new employees” accordingly to Todd Maycunich, VP of Product Innovation TMP Worldwide.
At an extreme you can hear the corporation claiming that the employee is an asset of the company that the company has invested in (through training, health insurance, etc.) and that if the employee does not take care of the company’s asset, the employee can be liable for destruction of a company asset? So don’t eat that donut while your wearing your Fitbit.
Scenarios like the above make employees fear for their economic livelihoods. Even when companies make the use of wear tech voluntary, will discrimination set in – bias against those who opt-out of using it – causing suspicion of what they may (or may not) have to hide? Can this bias get to the level of creating a hostile environment?
But that is just the beginning. Here are some other hot-spots in regards to wear-tech in the workplace:
Most employment laws will quote the common standard that employees do not have a reasonable expectation of privacy at their workplace. Companies have implemented many policies that put the employee on notice that they are being monitored, especially while on work premises, during work hours, and on company equipment. These policies usually require the employee to sign his/her acknowledgement of the policy. It gets murky when the device belongs to the employee – but the legal field is getting comfortable with protecting company rights via BYOD policies. But there are still federal and state laws currently on the books that deal with employee’s rights to a certain level of privacy such as the:
- Privacy Act of 1974
- Federal Wiretap Act and state Anti-wiring Laws
- Stored Communication Act
- The Electronics Communications Privacy Act
- American Disabilities Act
- Age Discrimination
(policies targeting certain medical conditions that tend to occur the older you are)
- National Labor Relations Act/Board and protected concerted activity
- Fair Labor Standards Act
Privacy has another side as well. Beyond the employee’s privacy there is the privacy of others to consider – co-workers, clients, customers, the public. Some wear tech have recording capabilities (like Google Glass) that is indiscriminate in what it takes in. Trade secrets and other confidential information can be inadvertently (or intentionally) recorded and disseminated with dire consequences, including loss of credibility, compliance penalties, etc.
Information stolen or hacked from a wearable technology can be of the most sensitive kind – personally identifiable information including health and mental data can offer a much more in depth profile of an individual that can be used in malicious and illegal ways. We concern ourselves now with identity theft, but what if they do not need your identity at all since they can have direct access to you? For certain company executives in certain companies their health is a factor in the profitability of the company. What if a perfect murder could be achieved remotely – say, by having the executive get an extra dose of insulin through the automatic implant that is controlled by an app installed on the smart watch? Or have her heart stopped with a click of a button on the heart app? Takes the concept of “insider trading” to a whole new level.
As we consider employee safety we need to also consider worker’s compensation issues. What if the wear tech that was provided by the company produces an adverse health effect? (Like an allergy to the material the device is made of). What if the technology causes a distraction that leads to the employee injuring him/herself?
These devices are getting smaller and smaller and more ubiquitous. As they permeate our everyday culture, they become invisible – no longer a novelty they are accepted as just the way it is. But this “invisibility” and smallness can lead to gadgets being in places they should not be and/or being lost with their data or access to data included. Companies need to think of securing the device as well as the data. They can become easy access points for hackers, so awareness campaigns and education of users is essential. Companies can also use technological solutions such as encryption of data, a containerized approach to separate company and personal data form each other, or biometric authentication for data access through the device.
In certain scenarios the wear-tech may have a pro/con affect for the company as in the preservation of evidence in certain discrimination or harassment cases. Another example is if the employee was in a car accident while using the wear tech provided by the company? What about for product liability cases? Sees the US Consumer Product Safety Commission is interested in the wearable technology space.
These are just a few of the issues wearable technology presents to employers. More will come as they become more integrated into our lives and our workspace. As attorneys we need to be aware of this trend and how it affects the liability of our clients. As they say – stay tuned. The fun is just beginning.