Tuesday, March 6, 2018

The legal implications of employee tracking devices

Photo by N. on Unsplash
I once knew of company (not a client) at which its CEO would sit in his office all day and watch a bank of monitors connected to cameras all over the workplace so that he could track the productivity of his employees. He even had one outside the bathrooms to record how frequently, and for how long, his employees were taking potty breaks. Needless to say, morale among his employees was not great.

Monitoring of employees has gone even more high tech. The Chicago Tribune reports that Amazon has developed wristbands to track worker hand movements as they fill and ship orders in its warehouses and distribution centers.

Employers have legitimate business reasons for tracking employee movements—e.g., enhanced operational efficiencies, improved customer service, securing accurate time records, and improved safety.

The counterbalanced risks? For starters, there’s the creep factor. How much will your employees mind Big Brother tracking all of their movements, and how will it impact morale?

Additionally, there are some legal risks.

Privacy: Provided employees consent to wearing these tracking devices as a condition of their employment, there should not be any privacy concerns. Indeed, in Quon v. Arch Wireless, the Supreme Court suggested that employees may lack any reasonable expectation of privacy in employer-provided technological equipment. Yet, the law is not quite settled on these privacy implications. Moreover, state privacy laws may vary. Additionally, the more data you record, the more risk you take that such information will be compromised or targeted by hackers.

Medical Information: Tracking employee movements could reveal a host of medical information. Who visits the bathroom more could be pregnant or suffering from a bladder infection? Who smokes? Who visits the vending machine and eats unhealthy snacks? This information could be used, for example, by employers to discriminate, or by insurers to charge higher premiums.

So, what are some suggestions if you wish to use devices to track employee movements in your workplace?

  1. Document your reason(s) for tracking to support your legitimate business interest.

  2. Disseminate (and explain) an Employee Tracking Policy, which should describe the need for the program, the nature of the tracking device, the data you will be tracking, how you will use (and, more importantly, not use) the data, and how you plan to keep it secure.

  3. Obtain employee consent before deploying the device.

  4. Limit the data to those that need to know, to minimize the sphere of individuals who could learn or infer medical information. Or, consider anonymizing the data so individuals aren’t implicated.

  5. Don’t sell or otherwise disclose the information to insurers or other third parties.

  6. Ensure that your data security is updated.

And, finally, call your employment lawyer. Cutting edge practices are always risky, and should be vetted by counsel.