Wearable Technology Device Policy

Author: Tracy L. Moon, Jr., Fisher Phillips

When to Use This Policy:

The use and presence of wearable technology devices in the workplace is growing and is projected to increase considerably as new devices and applications are developed and become available for purchase at lower prices. The potential for improving profitability and productivity will likely ensure the expansion of wearable technology device used by businesses. An employer can expect to see more employees wear wearable technology devices such as activity and fitness trackers, smartwatches and smart glasses to work for personal, nonwork-related reasons. Inappropriate and unlawful use of wearable technology devices may create legal risks and employment-related issues for unprepared employers, resulting in disgruntled employees, charges of discrimination, lawsuits and even injuries and deaths.

This policy should be communicated to all employees at the commencement of employment addressing any questions they may have regarding its scope and enforcement. An employer should obtain a written acknowledgment signed by employees acknowledging their understanding of, and intent to comply with the policy. Because wearable technology is rapidly changing, an employer should keep up with changes and review the policy to ensure appropriate and lawful use of wearable technology devices in the workplace.

Customizable Policy

Wearable Technology Device Policy

Scope - This policy sets forth rules governing employee use of wearable devices incorporating computer, communication and electronic technologies, including, but not limited to, activity and fitness trackers, smartwatches, smart glasses, tech togs, fashion electronics and other devices with embedded processors, sensors and software that allow information and data to be transmitted from the device to other persons, entities, devices, products and systems (collectively referred to as "wearable technology devices" in this policy).

Safety- [Enter Employer Name] encourages its employees to remember safety when using their wearable technology devices while driving for the employer and/or while on work time. Employees who are driving for the employer and/or who are on work time, are expected to conduct themselves in a safe and lawful manner, obeying posted speed limits and other traffic laws. Employees should not engage in text messaging, emailing, or entering information into their wearable technology devices while driving or engage in other activities involving the use of their wearable technology device which are inconsistent with safe driving, applicable laws and Department of Transportation (DOT) regulations.

For safety reasons, [Enter Employer Name] asks that employees not talk on their wearable technology devices while driving, unless the wearable technology device has a "hands-free" mode. Employees must comply with any applicable laws and DOT regulations related to the use of wearable technology devices while driving, including those laws related to texting.

Content - Employees should be mindful of the content of any messages that they transmit via their wearable technology device. Specifically, employees should not transmit or distribute any material that is obscene, vulgar, defamatory, threatening, discriminatory, harassing, abusive, hateful or embarrassing to [Enter Employer Name], its employees, its customers, or its vendors. Examples of prohibited uses include, among other things, sexually explicit messages, images, cartoons, or jokes; propositions or love letters; ethnic or racial slurs; or any other message or image that may be in violation of [Enter Employer Name] policies.

Application of Other Workplace Policies - All employee wearable technology device usage is subject to all other company policies, including, but not limited to, [Enter Employer Name]'s policies on confidentiality of information and discrimination, harassment, and retaliation.

Discipline - Employees who violate this policy may be subject to disciplinary action up to and including termination of employment.

I hereby acknowledge that I have read, understand and agree to abide by the above statements.

EMPLOYEE NAME: ______________________________

EMPLOYEE SIGNATURE: ______________________________

DATE: ______________________________

Tips

When developing an employment-related policy, an employer should evaluate the existing conditions in their workplaces to gain an understanding of facts and circumstances that could affect and be affected by its implementation. After the policy is developed, an employer should determine the best means of communicating it to employees, which may consist of its publication in the employee handbook, posting on bulletin boards, or its inclusion with other communications to employees.

To ensure successful implementation of the policy and to avoid potential problems, employees, including supervisors and managers should be provided training on the policy. Because laws, rules and regulations applicable to wearable technology devices are constantly changing, an employer will need to monitor the changes and update this policy to ensure maximum effectiveness and compliance with applicable law, including Section 7 of the National Labor Relations Act (NLRA).

There may be additional federal, state and local requirements, so employers should be sure that the policy complies with them prior to its implementation.

Warnings

Preparation of the policy may not be sufficient to ensure it accomplishes the intended results. The policy should be communicated to all affected employees and management who will be responsible for its enforcement, ensuring that it is applied in a consistent manner in an effort to avoid claims of discrimination or violation of employee legal rights, including Section 7 of the NLRA. An employer may want to designate one individual, a group of individuals, or a department to be responsible for overseeing the implementation of the policy, addressing any questions, reviewing enforcement and discipline, and monitoring changes that may affect the policy.

Although an employer currently has a great deal of freedom when monitoring employee communications, the law in this field is rapidly evolving and limitations could be imposed. The pace of technological change has led to increasing privacy concerns. These privacy concerns have compelled state and federal legislatures, the National Labor Relations Board, and courts to take action.

To ensure employers do not violate applicable law, it is a best practice to:

  • Draft and implement a written policy and communicate it to employees, so they are aware of the policy;
  • Develop a policy that is reasonable and lawful, so that employees do not feel they are constantly being watched; and
  • Monitor employees' activities for legitimate, non-discriminatory, business reasons only to avoid legal claims and employee concerns.

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