Source: Clement L. Tsao, Kevin J. Haskins, Brian D. Hall, ABA National Symposium on Technology in Labor and Employment Law, Presented by the Technology in the Practice and Workplace Committee April 5-7, 2017
….It should not be difficult to imagine that the ability to track each employee’s precise location and physiological activity could have a chilling effect on protected concerted activity under the NLRA. Depending on the type of wearable technology involved, employers could eventually, if not already, have the equivalent of a workplace ankle bracelet, i.e., GPS monitoring device, that could be used as a tool to monitor or interfere with protected concerted activity. For workplaces where there is a certified collective bargaining representative, wearable technology, or any form of a surveillance system, should be a mandatory subject of bargaining. See Colgate-Palmolive Co., 323 NLRB 515, 515-16 (1997) (where the Board held that installation and use of surveillance cameras were mandatory subjects of bargaining). Given the likely chilling effect on protected concerted activity as well as in order to reduce the risk of unlawful surveillance, employers should establish and enforce policies for disabling wearable technology and collecting wearable data outside of working hours….
…..Wearable technology excels at providing data on health. The pedometer of yesterday has been relegated to the vintage dustbin: today’s fitness trackers, like those from Fitbit, Jawbone, Garmin, and Apple, can track not only heart rate and calories burned, but sleep patterns, walking patterns, sweat, diet, and a whole host of other health attributes when paired with mobile apps for tracking mood, fertility, and medication, to name just few. Although many of these devices are designed for the consumer market, they are becoming increasingly common in the workplace, often as part of employee wellness programs. Companies are also finding wearable devices useful for enhancing worker safety: devices for monitoring a worker’s hydration, temperature, movement, and external hazards are already available, and research is continuing into how to coordinate these tools into a “technological guardian angel” for workers. Not surprisingly, the proliferation of wearable technology in the workplace raises a number of legal issues. In particular, the intersection of wearable technology and health implicates issues under the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and health privacy laws like the Health Insurance Portability and Accountability Act (“HIPAA”)…..