How to Manage Wearable Devices at Work

Authors: Tracy L. Moon, Jr., Fisher Phillips and Beth P. Zoller, XpertHR Legal Editor

Wearable devices (or wearables) are an emerging technology that stands to have a profound effect on the workplace and the way people work, communicate and interact. Wearable devices are clothing and accessories (e.g., a watch, glasses, etc.) that incorporate computers, cameras and other forms of electronic technologies. While wearables have many of the same capabilities as laptop computers and hand-held devices, they are generally more sophisticated and can even outperform these devices because they have other capabilities such as tracking physiological functions and individual movements and recording the surrounding environment. Whether it is an Apple Watch an employee uses to review work-related emails or a FitBit an employee is wearing as part of an employer-sponsored wellness plan to monitor health and fitness, wearable devices bring many issues to light because while there are significant benefits to it, there are also substantial drawbacks. Therefore, an employer should be prepared to implement safeguards to protect their legitimate business interests.

In order to effectively manage wearable devices in the workplace, an employer should consider following the steps:

Step 1: Recognize the Benefits of Wearable Technology

An employer should understand that there are significant benefits to permitting employees to use wearable devices at work as the very size of the device and the way it is worn on the body has advantages over a device that is carried. Some benefits include:

  • Enhanced worker communications by allowing employees to communicate and record information or review records and files on the spot. Wearables can also monitor employee activity and social interactions to see how employees perform and engage with others.
  • Increased workplace safety. Wearables may increase safety and efficiency because an employee does not need to use a hand-held device to interact. Wearables can also evaluate safety and assist with monitoring workplace hazards. These devices can also evaluate the metrics of the human body (i.e., whether an individual is becoming sleepy) and an employee's surroundings.
  • Employee identification purposes. A wearable device can act as an access card or badge to provide entry to workplace, worksite, computer systems, etc., thereby reducing the need for key cards, passwords etc.
  • Monitoring employee conduct and productivity to evaluate how efficient employees are at performing their jobs.
  • Monitoring employee health and wellness. Evaluating employee health and wellness and monitoring eating, sleeping habits as part of an employee wellness program are incentives for employees to lead healthier lives.
  • Aid employee training by permitting employees to review training videos while at the worksite or record their performance and review it with a supervisor to identify areas for improvement.
  • Providing employees with the ability to record the world around them and create real time audio and visual records for use by the employer.

Step 2: Consider the Risks of Wearable Devices

An employer who permits or requires employees to use wearable devices for personal purposes or the employer's purposes should realize that there are significant risks that may harm the employer and increase the potential for liability. Risks of wearable technology include:

  • Employee access of inappropriate information such as pornography or other obscene content during working hours.
  • Loss of employee productivity because employees are focused on the wearable and not on their job duties and responsibilities and interactions with others.
  • Harassment and invasion of privacy issues because the device permits an employer to record the private conduct of others and access highly personal information (i.e. religion, sexual orientation).
  • Creation of discoverable information because the wearable allows users to record photos and videos as well as discriminatory actions of the employer or supervisors.This evidence may be used against the employer in a legal proceeding, whistleblower claim, harassment claim or disciplinary hearing.
  • Claims for disability and genetic information discrimination because with the wearable an employer can access private health and genetic information (i.e., heart condition, cholesterol level).
  • If wearable devices are connected to the employer's private and secure network, it could introduce viruses or malware into employer's network.
  • Increased risk that employer's confidential information, financial data and customer information may be disclosed and/or stolen and cause damage to the employer's business and reputation.
  • Wage and hour issues may arise because with wearables, the lines between work and non-work are blurred and employees may be working, answering emails off duty and engaging in work-related duties after hours.
  • Wearable devices can lead to negligence and tort claims if an employee is distracted by a wearable when driving or performing work-related tasks such as operating hazardous machinery or equipment.

Further, many of these risks increase the chance that an employer will face a lawsuit for discrimination, harassment, invasion of privacy, negligence, wage and hour or violation of labor laws concerning the employee right to engage in protected concerted activity.

Step 3: Establish a Wearable Technology Device Policy

An employer can effectively monitor wearable devices by implementing a Wearable Technology Device Policy that outlines the proper and improper use of wearables in the workplace, and which applications are permitted. Depending on whether the device belongs to the employer or the employee, the policy should state the type and kind of devices an employer will permit and the employee's obligations to keep the device secure if is connecting to the employer's network. It should also state the employee's obligations with respect to repairing and returning the device as well as any reimbursement procedures.

The policy should make reference to employer policies regarding discrimination, harassment, confidentiality and distracted driving and make sure to specify that these same policies will be extended to the wearable device. The policy should also state whether, when and how the employer will monitor the wearable technology; how employees should report violations; and clearly set forth the disciplinary procedure and penalties for any violations of the policy. All employees should be required to sign an acknowledgment form stating that they have reviewed the policy and agree to abide by its terms. The policy should be frequently revisited and updated based on the employer's changing needs and this rapidly developing technology. An employer should also keep in mind that the policy may need to be tweaked depending on the particular circumstances.

Step 4: Provide Training to Employees and Supervisors

An employer should provide all employees and supervisors with comprehensive training on the permissible uses of wearable devices in the workplace. The training should include a review of potential issues that could arise out of the use of wearable devices such as harassment complaints, invasion of privacy, wage and hour violations, etc. The employer should ensure that the training addresses concerns related to confidentiality agreements and disclosure of the employer's trade secrets, intellectual property and other confidential information and that in order to protect confidential information, the employer may restrict the use of wearable technology in formal meetings, hearings or areas of the worksite where confidential material is discussed or exposed.

Employees and supervisors should also be trained on how to engage in the safe use of wearable devices while working on the employer's premises or driving in order to eliminate the possibility of accidents occurring in the workplace or during working time and minimize employer liability.

Step 5: Monitor Employee Use of Wearable Devices Provided by the Employer or Used for Work-Related Purposes

An employer should advise all employees and supervisors that it will be monitoring and auditing the use of wearable devices provided for use by the employer and/or used for work-related purposes. The employer should also obtain employee consent. This will ensure that employees are complying with the Wearable Technology Device Policy and engaging in acceptable and safe use. Further, it will put employees on notice that their privacy with respect to communications on the device will be limited under the circumstances. It also may be a good idea to have employees sign waivers and releases releasing the employer from any liability for viewing the employee's personal information and absolving the employer from liability in the event the employee breaks the law.

Step 6: Comply with the National Labor Relations Act

When implementing a Wearable Technology Device Policy an employer should be sure not to infringe upon the rights of both union and non-union employees. Section 7 of the National Labor Relations Act (NLRA), provides that workers have the right to engage in protected concerted activity or collective action to improve their wages, hours and working conditions. The National Labor Relations Board (NLRB) has demonstrated that it is willing to bring unfair labor practice charges against employers who maintain overly broad workplace policies that restrict the right to engage in protected concerted activity or who discipline employees for engaging in protected concerted activity.

According to the report released by the NLRB Office of the General Counsel in March 2015, a work rule that prohibits employees from engaging in protected concerted activity, or one that can be reasonably construed as attempting to prohibit employees from engaging in protected concerted activity, may be found unlawful. Further, when conducting any monitoring an employer should remember that it may not engage in monitoring or surveillance for any unlawful purpose including monitoring, or giving the impression of monitoring, employee union activity and protected concerted activity under Section 7 of the NLRA. As a result, an employer should also make sure to consult with unions and collective bargaining agreements before conducting monitoring and surveillance of wearable technology.

Step 7: Implement Safeguards to Minimize Employer Liability

An employer should implement adequate safeguards to minimize the potential for employer liability when it comes to wearable technology in the workplace. An employer may avoid harassment or privacy claims by prohibiting employees from viewing or recording inappropriate content on wearable technology devices. An employer also may seek to restrict the use of wearable technology in formal meetings, hearings or areas at the worksite where confidential material is discussed or exposed. In doing so, an employer may be better able to protect its confidential and proprietary information and trade secrets as well as customer information. Also, an employer may restrict wearable technology during meetings with patients. Additionally, an employer should take steps to protect cyber privacy and the security of the employer's network. An employer should also be careful if it allows wearable technology to record and monitor an employee's health and wellness as the employer could face disability or genetic discrimination if the employer takes an adverse action based on such information. Therefore, an employer should carefully review any employment action to see if it is based on information gleaned through a wearable device.

Step 8: Be Careful Not to Invade Employee Privacy

An employer should be wary of lawsuits for invasion of privacy when it comes to wearable devices as employees may have a greater expectation of privacy if they own a device that contains personal and confidential information. An employer may want to require employees to install personal firewall protection in order to safeguard the employer's information. This will also protect the employee's personal content, such as photos and files, from being wiped from the device in the event it is lost or stolen. When doing this, an employer should provide employees with assurances that their personal information is also protected and will remain confidential and notify them when any monitoring or surveillance occurs. However, an employer should put employees on notice that data and information on a wearable device may be monitored and discoverable in the context of a lawsuit.

Step 9: Consider Wage and Hour Issues

If an employer permits employees to use wearable devices, it should consider overtime issues involved and potential wage and hour lawsuits they may face because the lines between personal time and work time could be blurred. It may be best practice for an employer to reimburse nonexempt employees and pay overtime for time spent on wearable devices conducing business-related tasks outside of working hours. If an employer chooses this option, it needs to decide how it will have employees report such use. Alternatively, an employer may want to prohibit employees from using wearable devices for business purposes during nonworking hours.

Step 10: Ensure Safe and Proper Use by Employees

In order to protect the safety of employees and third parties and minimize employer liability, an employer should make sure that employees engage in safe use of wearable devices. Employees should be instructed to follow distracted driving laws and refrain from using such devices on the road for the employee's safety and the safety of others. Further, an employer should make sure that employees in sensitive positions, such as those operating heavy machinery or dealing with dangerous chemicals or tasks, are careful when using wearable devices.