January 4, 2017
By Andy Nielsen
In 2015, various business news outlets reported that Hitachi, a Japanese technology company, had created a wearable badge that would continuously track its employees’ movements and behaviors. Sensors in the badge would record data such as whether the employees were sitting or standing, who they were speaking to, and for how long.
The idea was that by gathering this information, Hitachi would be able to measure the happiness of its employees, address any sources of unhappiness, and thereby boost productivity.
Your own immediate reaction to Hitachi’s program may fall anywhere from “Hey, sounds like an interesting idea,” to “Wow, that’s very creepy.” In either case, you would be interested to know that we are closer than you might think to widespread adoption of this sort of technology.
As just one example, employers and insurance providers are taking notice of the recent proliferation of personal fitness trackers (such as Fitbit), and many have established programs that provide discounted health plan premiums in exchange for access to tracker data showing an active lifestyle.
Many such potential uses have captured the imagination of employers, and there are plenty of tech start ups working on different applications. These tend to fall into the categories of either safety (like sensors that warn workers of dangerous conditions), or productivity (like glasses that tell a warehouse worker where to find a crate on a shelf). Many of these would have some GPS capability, meaning they can report a worker’s movements to an employer.
Increasing use of this technology is going to create enormous privacy challenges for both employers and employees. In our recent post on employer e-mail monitoring, Nathan Sutherland noted that while there is a diminished expectation of privacy at work, employees still retain privacy rights in the workplace.
Given how courts, privacy commissioners and arbitrators have addressed issues of workplace e-mail monitoring, GPS tracking, and video camera use so far, it is reasonable to expect an employer that mandates any “workplace wearables” program is going to face an uphill battle. “Opt in” programs will likely fare better.
Finally, it is worth pointing out the massive amount of personal information that such technologies are going to put into the hands of employers. While this will naturally be of concern to many employees, employers should also think carefully about whether they want to incur the legislated responsibility of safeguarding such data, and whether they have appropriate systems in place to do that.
For more information about employment and privacy law, please contact Andy Nielsen.
#WorkLawWednesday: every second Wednesday Pink Larkin answers general questions about employment and human rights law. This is not intended to be legal advice and should not be relied on as legal advice.