By Brice Wallace
From the time we awaken until the time we’re back in bed, many of us are connected to electronic devices that themselves are connected to other devices.
Those nearly ubiquitous devices can include a Fitbit health activity tracker; smartphones; clocks, scales and coffee-makers with smart technology; voice-activated digital assistants (think: Siri or Alexa); wearable technology like smart rings, belts, watches or Google Glass; surveillance cameras; safety wearables to detect drowsiness; GPS mapping systems and car entertainment centers.
All of that sophisticated technology allows for a multitude of opportunities for personal and business activity, but an Employers Council attorney recently warned an audience in Salt Lake City that it also is a worldwide web of potential trouble. Many subtleties in the use of those devices can lead to costly claims of discrimination or invasion of privacy by employees.
“Smart technology is something that is a growing part of our workplace. We have all kinds of technology that’s getting more sophisticated and more functional all the time. It’s likely that the smart workplace is likely to just become more smart as time goes by,” Tamara Barkdoll, a staff attorney in the Employers Council Employment Law Services Department, told the audience at the council’s Law Update Conference.
She pointed to research indicating that two years from now, 95 percent of all electronic devices will be connected to the Internet and communicating with one another.
“So, what this means for us as employers is that there is more risk and more opportunity for us all the time,” Barkdoll said. “It could be too smart for our own goods, at least at times.
“Now, don’t get me wrong — I’m not saying that smart technology is bad. What I am saying is that as employers, we want to factor in some time and opportunity to consider these technologies and not only their potential rewards and benefits for us, but also the risks — and not just the ones that are really obvious.”
Barkdoll’s presentation featured a fictitious character interacting with common technologies during a typical workday. Before the character even left home for work, he had used a smart clock, scale and a coffee-maker. He strapped on a Fitbit provided by his employer’s voluntary wellness program. He wore several technologies and checked his appointments for the day on his voice-activated digital assistant, connected to his company-provided smartphone.
Seems harmless enough, right?
“Within our homes, we generally have a reasonable expectation of privacy, but that’s not so true with voice-activated technology,” Barkdoll said. “When it comes to voice-activated technology, it’s likely that what a court would find is that we have no greater expectation of privacy than if we’re using a search engine.”
Those devices have the ability to record sound nearby and in the background, and those can be subject to sharing, depending on terms and conditions spelled out by the devices’ third-part service providers.
“If you’ve provided to your employees voice-activated technology … some of your private, business-confidential information may be being shared with third parties.”
When the fictional character arrived at work, he was subject to cameras surveilling the workplace. Those cameras have potential benefits for employers, such as checking employee productivity, providing security and even preventing loss. But those legitimate reasons for having the surveillance must be weighed against the possible ramifications tied to employees’ expectations of privacy. She suggested that companies using video surveillance restrict the recording of audio, which comes with its own set of possible eavesdropping and wiretapping woes, as does employers doing their own recording at work.
“There is a lot of recording by employees. This can be both video and audio. And we know that employees, especially in one-party-consent states like Utah, are recording not only their co-workers but also their employers. So, a good thing to keep in mind is that we as employers want to be on our best behavior at all times and we want to treat our employees fairly.”
Various types of devices have the potential to expose companies to claims based on device-sharing of employees’ private health information, which can be related to disabilities or genetic information. Several laws come into play, including the Americans with Disabilities Act, Genetic Information Nondiscrimination Act and the Health Insurance Portability and Accountability Act.
For example, Google Glass smart eyeglasses, aimed at tracking worker productivity, could reveal to the company some of the user’s private health information. So could “safety wearables,” often used to alert drivers and heavy-equipment users about fatigue symptoms.
Private health information also could be collected by a company through the Fitbit and company-provided phone during a workout at a gym. Barkdoll also showed how an app connecting fitness enthusiasts worldwide can reveal the location and movements of users — risky for businesses involved in security or other high-risk ventures.
Other possible outside-the-office trouble spots involve GPS or other mapping/location devices. They can indicate that the user visited a fast-food joint — allowing the company to judge his nutritional choices — or otherwise track movements during lunch breaks or other private times. Again, Barkdoll said, employers need to strike a balance between the degree and nature of their surveillance and the employee’s expectation of privacy.
Even something as seemingly innocuous as syncing a smartphone to a company car’s entertainment system could put company information in peril. Sensitive information about the company and/or the employee can be stored on the entertainment system, making it susceptible to hacking by outsiders or even misuse by future owners of the same vehicle.
While those devices and scenarios are commonplace, Barkdoll noted a few other that are less likely to be implemented in a widespread way. For example, 50 of its 80 employees at a Seattle company voluntarily had microchips implanted in their fingers as a way of eliminating the need for ID cards and easing the process of checking in or out of work. Thousands of people in Sweden, she said, have voluntarily been microchipped so they don’t have to carry paper tickets to use the national railway system.
The potential exists for a chipped worker to move to another company, with the implanted chip still feeding information to his former employer.
Still, she predicts that microchips will not be prevalent in the U.S. “because it is so invasive and really pretty permanent.”
Likewise with biometric technology that can scan irises or pupils, which could inadvertently reveal employees’ health issues and thereby be seen as an invasion of privacy.
As complex as today’s technology-based employment issues are, Barkdoll warned that they will become more so as the tech becomes more sophisticated and more-widely used. And that’s not even taking into account the varying laws in different jurisdictions that also are constantly subject to change.
“You want to be diligent and vigilant thinking about the changing legal landscapes within your different jurisdictions because as quickly as the technology changes, so can the legal implications and requirements,” she said.
Generally, she cautioned employers to address issues by having employees receive prior written notice about company tech policies, having employees trained on those policies, and having all of the policies applied consistently.
The Salt Lake City crowd consisted primarily of lawyers and corporate officials focused on human resources and employment law. Barkdoll noted that they are trained to spot HR concerns and employment law considerations every day and have a vital role to play when it comes to technology matters.
“I think that your value is particularly poignant in the area of technology, because when your organizations are thinking about technology, they’re probably involving IT people and thinking about technical things like systems designs,” she said. “Not so much are they involving HR and thinking about HR and employment law considerations.”