First fax machines, then email, then smartphones and now "wearables"--a new technological breakthrough that, depending on who you talk to, offers both peril and potential. Some perils: wearables allow employees the ability to easily, quickly and covertly record images and data, which may include confidential information, trade secrets or other potentially damaging information. Wearables also, technically, allow the ability to monitor others' location and physical status, which raises privacy concerns. Add these concerns to issues related to the National Labor Relations Act, and employers are understandably reeling from the potential risk.
However, notes Heather Sussman, co-chair of the Global Privacy and Data Protection group at McDermott Will & Emery LLP, in Boston, there may be some significant benefits as well. Wearable devices--the recently released Apple Watch and Google Glass arguably most well-known among them--provide benefits to both employees and employers, says Sussman. Employees appreciate the ability to use their devices for both work and personal needs, and employers, she says, can benefit from a business perspective. "We're going to see more and more employers figuring out how these wearable technologies can help to both improve the workplace and facilitate productivity," she predicts.
For instance, she says, "There are some great examples out there about how there is the potential for wearable technology to monitor fatigue or other safety signals in safety-sensitive positions, which has the potential to reduce accidents and improve safety."
What Are Wearables?
A wearable is a technological device that can be worn rather than carried, like the upcoming Apple Watch. The functionality of these devices is largely similar to what we've come to expect from smartphones, including the ability to record information through camera and video images. In addition, emerging applications allow aspects of the wearer's own behaviors or biology to be tracked and monitored-location, distance traveled, heart rate, blood pressure and conceivably, much, much more.
All of these functions, of course, present both opportunity and risk for employees and employers. Legal experts say the key is to take a practical approach to both the use of such devices and the risk related to this use.
Practical Considerations - More "The Same" Than "New and Different"
Like many technology-related considerations, there can be a tendency to over-dramatize or overthink the implications of the technological impacts. In fact, legal experts say the considerations are really more of the same than extremely new and different. The same principles and policies apply-they just apply to new technology.
Charles Krugel is a human resources attorney and counselor in private practice in Chicago. Krugel says: "I encourage my clients to take a somewhat liberal approach to e-media policies and practices." This is for a couple of reasons, he says:
- Government agencies like the EEOC and NLRB, as well as laws like the Stored Communications Act, make it difficult for employers to be extremely restrictive in regulating the content and ownership of workplace communications
- It's bad human resources management for employers to be overly restrictive in the censorship of workplace communications
But, on the other hand, says Krugel: "Employers have an absolute right to ensure that their workplace is free from illegal and unprofessional behavior whether it's in the form of electronic communications or body language, and to ensure that their employees aren't violating intellectual property rights such as trademarks, copyrights and patents." Therefore, he notes, reasonable restrictions on the use of wearables to gather legally protected information can be enforced in the workplace.
The key, says Sussman, is common sense. Sussman points out that employers have to think about wearables "in the same paradigm as the traditional workplace laws and privacy laws."
- Is there a legitimate business reason to use the technology?
- Have you put employees on notice about the ways you're applying technology and that its uses can't be used for, and won't be used for, discriminatory or other unlawful purposes?
"That's the way to look at it," she says.
The Big Bucket of Risk
Still, there are legitimate concerns, particularly for content providers, that come into play and must be effectively managed, says Josh Druckerman, an associate with White Harris PLLC, a New York employment law firm.
"Perhaps the largest legal risk presented by Google Glass is the fact that it can surreptitiously record video and audio," says Druckerman. "This creates a whole host of legal risks, including potential hostile environment or sexual harassment claims, violations of state privacy laws or even workplace discrimination suits." The recording capability of Google Glass means that it can be an "excellent tool for corporate espionage," says Druckerman.
Consequently, he recommends that companies:
- Look into instituting policies regarding the use of devices that have cameras when entering sensitive areas or viewing sensitive information and training personnel to identify and act to prevent such potential security leaks.
- Ensure that security personnel, employees and management are able to recognize such devices.
- Consider instituting policies that require visitors to leave cameras, smartphones, Google Glass and other recording-capable devices with security personnel before entering sensitive areas.
"In addition to having effective technology use policies," says Druckerman, "HR needs to have an understanding of the capabilities of wearable devices, as well as what risks they present. This means that it is important to educate and train managers and HR professionals to identify potential technology issues before they can cause problems."
Education is key, he says. "Employees must understand what is expected and required of them, the risks they create for the company and the consequences of security breaches and harassment." Again, focus on how the implications of these devices represent "more of the same" rather than a significant departure from issues already being addressed.
Wearables aren't going away any time soon. The opportunity and challenge for employers in all industries is to consider not only the benefit wearables can provide from a business perspective but also the inherent risks that technology increasingly represents.
(Image courtesy of Shutterstock.)