Outsmarting the Smart Workplace

by Tamara Barkdoll

Smart technology can help employers forge a more motivated, efficient and effective workforce. But these devices also pose significant employment-law risks. While employee privacy concerns are one common issue, others are less obvious. Following the tips below can help employers avoid being caught off guard by addressing these legal risks early on. 

Be Vigilant and Proactive

Just as technology is both ever-emerging and ever-changing, so too are the legal requirements and guidance around smart technology. Geographic location of employer location is key, because states, and even localities, can have their own requirements beyond federal law. This means that employers must stay abreast of evolving laws and proactively change practices and policies in response. Reading pertinent legal briefings and the news daily, attending legislative and business briefings like the ongoing sessions offered by Employers Council, and reviewing surveys on industry trends are just a few examples of tools that can help leaders stay on top of and plan for any changes in requirements for smart technology. 

Wearables — Productivity and Safety: Some employers require certain employees, such as fulfillment-center workers, to wear productivity wearables (devices attached to the body such as to the neck, head, arms or hands). The employers argue that productivity wearables can help employees become more efficient by freeing their eyes and hands from monitors, keyboards and scanners. Some employers require drivers and heavy equipment operators to use safety wearables. Employers argue that safety wearables pose less invasion of employees’ privacy than in-cab cameras, for instance, and promote safety by alerting employees and their employers to signs of fatigue, such as drooping eyelids or nodding off. A common challenge with mandatory employee use of both productivity and safety wearables is that, if an employee has legitimate job-related performance issues and also has a health-related condition that could affect job performance, this might trigger the interactive process and possible reasonable accommodations under the Americans with Disability Act. Additional federal, state, and local laws could also apply.

Wearables — Health: Some employers offer health wearables, like Fitbits and other health tracking devices, as part of their voluntary wellness programs. These devices provide employee-specific health data, which employers can use to negotiate better health insurance rates on employee health plans. However, it’s important to understand that when employers possess health data linked to specific employees, they are at greater risk of health-related claims for discrimination in employment. Using a third-party aggregator to ensure all health information is provided on an anonymous, mass basis is one way to reduce this risk.

Wearables — Smartphones: Many employers provide smartphones to employees. The inherent functionality of these devices — coupled with apps employees install — can lead to unintended sharing of personal and confidential information with other parties. One example is Strava’s Heat Map app used by online fitness enthusiasts. This app caused massive military security breaches last year when service members used the app while stationed at secret military installations worldwide. The app tracks and publicly displays the location of app users on the Internet, and in doing so it inadvertently disclosed the location of the installations. Ensure there are clear policies in place for employees when using a company-provided phone for personal use. 

Car Infotainment Systems: These are another potential source for caution and concern. Employees often sync smartphones to company or employee car infotainment systems. Unlike smartphones, infotainment systems typically do not have robust security and safety measures, nor is their software updated as frequently. The systems download and store information, including confidential employee and employer information, which can be accessible not only to future users of the same vehicle but to hackers as well. Employers with company car infotainment systems should check with the manufacturers to determine their infotainment software updating practices and safety and security protocols.

GPS: Many smart devices come equipped with GPS location tracking. Some states and localities simply prohibit employer use of GPS on smart devices to track employees altogether. Some locations allow employers to track employees with written consent so long as the use is for legitimate business reasons and balances the employee’s reasonable expectation of privacy. It is important to note that even in cases where this is true, the nature of consent can still vary by location. Being familiar with the laws surrounding GPS location tracking in every state or locality where the company operates is imperative. 

The risks posed by functions and apps should encourage both employers and employees to check the security settings on their smart devices and individual apps and adjust them as appropriate from the default settings. It is important for organizations, as well as employees, to read and fully understand privacy and user agreements before agreeing to their terms for third-party smart technology. (Strava’s Heat Map app used by online fitness enthusiasts — which tracks app users and publicly displays their location on the Internet — caused massive military security breaches last year when service members used the app while stationed at secret military installations worldwide.)

Employers can reap many benefits from the use of smart technology. However, in order to make appropriate, well-informed and law-abiding decisions, policies and practices for their organizations regarding smart technology, employers must be knowledgeable of not only the benefits but also the varying applicable law and potential employment law risks.  

Tamara Barkdoll, J.D., M.B.A, is a Colorado licensed attorney in the Employment Law Services Department of Employers Council (formerly Mountain States Employers Council), a nonprofit association with more than 3,000 employers in the Rocky Mountain region and beyond. Employers Council provides advice, counsel, information, representation, training and education in all aspects of the employment relationship. 

As a staff attorney, Barkdoll defends Employers Council’s member organizations before the Equal Employment Opportunity Commission, the Colorado Civil Rights Division and the Colorado Department of Labor and Employment. She counsels organizations on a wide variety of employment issues that arise in today’s working world, including issues associated with wage and hour, leave and privacy

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