Labor & Employment Developments Blog

With the announcement of the April 24 release date for the long anticipated Apple Watch (http://www.cnet.com/products/apple-watch/), this is a good time for employers to consider the topic of wearable technology.  Of course, the Apple Watch is just the latest device in a long line of wearable technology innovations.  Examples include Google Glass, Fitbit, Nike Fuelband and an array of wireless headsets and microphones.  Also due for release in April is an alarming device called Kapture (http://kaptureaudio.com/), a wearable recording device that is always on and promises to make “it easy to save any 60-second snippet of audio after-the-fact, without taking you out of the moment.”  

Employers have been dealing with smart phones for some time now and it is tempting to simply dismiss these wearable devices as more of the same in a slightly different format.  However, the fact that these devices generate a significant amount of data, some without requiring any action by the user, make it worth considering how they might impact the workplace.  By way of example, consider these hypothetical scenarios:

• Managers and non-managers share health information generated by their wearable devices as part of a company sponsored program to improve fitness.  An employee later claims that his employer had knowledge of a condition and his need for an accommodation and/or leave based on the data provided by his wearable device.  The manager is also accused of improperly gathering health information about the employee.
• In a wage and hour case, wearable technology data is used to bolster claims of unpaid overtime and off the clock work based on GPS data regarding employees’ locations. 
• GPS data regarding employees’ locations throughout the workday automatically uploads to a website accessible by non-employees, creating a map of employee routes and customer locations.
• An employee causes an accident in a company car while distracted by a wearable device – the entire incident is recorded.
• Plaintiffs’ counsel in a class action demands broad discovery of data generated by company provided wearable technology and the company discovers that the data is not being maintained according to the same policies as other electronically stored information.
• An employee records video of a particularly rude customer and posts it online – the customer threatens a lawsuit for invasion of privacy.

As the foregoing list demonstrates, it is not difficult to imagine ways in which the data generated by wearable technology could create headaches for companies in the employment law arena.  So what is the solution?  An outright ban could raise a variety of issues and may not be feasible.  The good news is that most employers already have policies addressing the broad issues raised above, e.g. security, trade secrets, discrimination, social media and safety.  Employers need to reconsider these policies in light of wearable technology and make necessary revisions to specifically address potential issues.