BY: Tad T. Roumayah | IN: Employment Law
There’s no question that so-called “wearables” such as fitness trackers and smartwatches are rising in popularity. Almost everyone seems to be tracking steps, monitoring sleep and getting detailed analytics on workouts.
Wearables have definitely taken over our personal lives, but they are also increasingly showing up in the workplace. Amazon’s “pickers” are guided by GPS monitors as they move through giant warehouses assembling orders. At Boeing, workers engaged in the complex task of assembling airplanes wear heads-up monitors based on those used by pilots in the cockpit. Sensors track the employees’ movements and the heads-up monitors display relevant schematics and other information for each step in the assembly process. Faced with rising health insurance costs, many employers are adding fitness trackers to employee wellness programs.
Employers say using wearables makes for happier, healthier, and more productive employees. From a worker’s point of view, however, the growing use of wearables in the workplace should raise some red flags regarding employee rights.
The Danger of Data
The reason wearables in the workplace are a cause for concern is because they give employers unprecedented access to information about employees. A worker’s every movement throughout the entire shift can now be tracked and analyzed. Employees wearing fitness trackers that monitor heart rate, sleep, and other biometric indicators are handing an employer very private data about their health which they would have never previously disclosed.
All of this data in the hands of an employer creates a situation that is ripe for abuse.
For example, suppose an employee has filed a formal complaint about a supervisor, alleging discrimination or harassment. That supervisor – or even the company – could retaliate by using data from the worker’s GPS tracker to allege he is not meeting the requirements of the job and terminate or demote him. Similarly, a company could also use data from a wearable to silence a potential whistleblower.
An employee’s compensation could be threatened if an employer-provided wearable tracks her movements and productivity. The company could show the worker’s breaks were too long or that she took too much time to accomplish a specific task – and then make deductions from the employee’s wages.
Employees also face risks from employer-sponsored workplace wellness programs that incorporate fitness trackers or other wearables that monitor health data. The information gathered on a specific employee could reveal health concerns that might require accommodations under the Americans with Disabilities Act (ADA). An employer might terminate that worker before he or she can request an accommodation. An employer who receives a request for accommodation might also use fitness tracker data to prove why it’s not needed, or make allegations the employee is not suffering from an ailment at all.
Given these risks, employees must be cautious using employer-provided wearables. If it is a condition of the job – such as a GPS tracker – then workers should understand how that data will be used to evaluate their performance, and have a clear sense of expectations. As with any performance issue, workers are entitled to the same protections when it comes to how wearables are used to determine their productivity, and any consequences that result.
Employees should also be wary of signing on to workplace wellness programs that use fitness trackers. While this can be a way to begin – and sustain – a healthier lifestyle, there are real dangers from providing that much private health information to an employer. A company should have clear written policies regarding how that data will be used, and employees should be comfortable with those policies before agreeing to participate.
If you think your rights as an employee have been violated by your employer’s use of wearables in the workplace, please contact us today. A member of the Sommers Schwartz Employment Litigation Group would be happy to discuss your situation.
View all posts byTad T. Roumayah
Tad Roumayah focuses his practice primarily on employment litigation, representing employees who have encountered discrimination, retaliation, wrongful discharge, whistleblower protection claims, wage and hour violations and other employment issues and disputes.