Katherine Read is an attorney with Richards, Watson & Gershon. She can be reached at kread@rwglaw.com.

As the use of wearable technology grows, employers, regulators, and policymakers are struggling to keep up. But while prohibiting the technology in the workplace may seem intuitive, the proliferation of wearable technology makes that impractical. Certain wearable technologies are embedded with sensors and worn on the body to track a user’s movement or collect biometric information. Some glasses, watches, and rings allow users to record audio or video without the knowledge of co-workers or supervisors.

Here are a few practical and legal considerations for crafting a comprehensive wearable technology workplace policy.

Title VII and the ADA

Two federal statutes provide a framework for federal agencies’ evaluation of these issues, as many wearable technologies are health-related. The Civil Rights Act prohibits discrimination based on pregnancy, childbirth, or related medical conditions. The Americans with Disabilities Act (ADA) prohibits discrimination against an applicant or employee based on a disability.

The Equal Employment Opportunity Commission (EEOC) expressed concerns that wearable technology provided by an employer may collect data that constitutes a “medical examination” or a “disability-related inquiry.” A medical examination under the ADA is a procedure or test that seeks information about an individual’s physical or mental impairments or health. The EEOC’s guidance on Pre-employment Questions and Medical Examinations lists several factors that determine whether a test is a medical examination, like whether the testing is conducted by a medical professional or is invasive. A disability-related inquiry is a question that is likely to elicit information about a disability.

Using wearable technology to monitor an employee’s surroundings could fall under either prohibition. Employees may also inadvertently capture, through video or audio, another employee taking prescribed medication, taking a physical break, or looking at medical documents. This would be impossible to monitor completely, and the retention of recorded data would need to be closely monitored.

There are currently no cases on this point because the technology’s use in the workplace is relatively novel. However, in Nawara v. Cook County, the Seventh Circuit considered whether an employee — who never claimed he was disabled or perceived as disabled — was entitled to damages for being required to undergo a medical examination. The employee sued his employer alleging that the medical examination violated the ADA because it was not job-related or consistent with business necessity. On appeal, the Seventh Circuit found that employees can establish an ADA violation even if they are not disabled or perceived as disabled.

Several decades ago, in Doe v. Kohn Nast & Graf, P.C., an attorney infected with a disease sued his employer for searching his office and discovering a document confirming his disease. A district court determined that there was enough evidence for the lawyer’s claim to move forward. The court emphasized that the ADA prohibits an “employer’s inquiries of an employee as to whether such an individual with a disability or as to the nature or severity of the disability.”

These cases suggest that courts will likely see the surveilling of employees through employer-provided wearable technology as a medical examination or a disability-related inquiry.

Protected union activity

Employees have a reasonable expectation of privacy in the workplace and the right to engage in union activity. Permitting wearable technology only in an area that is accessible to the public or in an open area will reduce that expectation of privacy. For local agencies, the permitted use of wearable technology in the workplace is likely a meet-and-confer matter under state law.

There is no Public Employment Relations Board (PERB) decision on this point, but recent PERB decisions suggest that agencies should notify labor groups before finalizing a policy that allows wearable technology. For example, recording employees engaged in protected activities for disciplinary purposes is likely an unfair labor practice. Notably, PERB opined that employees can use technology to record protected activity. In American Federation of State, County & Municipal Employees Local 3299 v. Regents of the University of California, PERB determined that employees may use recording technology in connection with protected labor activity, absent special circumstances justifying restrictions. PERB stated that as technologies evolve, standards for participation in union activity should also conform to changing standards.  

The National Labor Relations Board has similarly cautioned against employers recording employees engaging in protected union activity, as it eliminates their ability to keep that information confidential from the employer. Negotiating with the labor groups is the best way to balance these concerns.

Privacy rights

The U.S. Supreme Court in O’Connor v. Ortega established that public employer intrusions on the privacy interests of government employees should be judged by the standard of reasonableness under all circumstances. California also provides individuals with the constitutional right to privacy and generally prohibits the recording of confidential communications without the consent of both parties.

While the impacts of using wearable technology to record employees have not been fully litigated, there are legitimate concerns that users may record employees in areas where people have a reasonable expectation of privacy. For example, an employee using Meta Glasses could record activities in a restroom without their co-workers’ knowledge. This would violate employees’ privacy rights and expectations.

Privacy advocacy groups in April issued a letter to Meta CEO Mark Zuckerberg saying that wearable technology represents a “dystopian privacy invasion” that is “a serious threat to privacy and civil liberties for every member of our society.”

Crafting employer policies

Public agency leaders must consider whether they want to allow these technologies in the workplace. One solution is to ban these items from the workplace, except for smartwatches and smartphones, as they are widely used. Banning devices like smart glasses or other portable recording devices through an existing workplace policy may also be more practical. Here are some key considerations for crafting a policy:

• Prohibit wearable technology in restrooms, locker rooms, breakrooms, lactation rooms, and other areas where protected activity takes place unless the employee is using their own personal device to record their protected activity.
• Advise employees that the recordings from their personal technology may be subject to a public records request if the technology is used for public business.
• Work with your IT Department to screen these recordings in the instance of a public records request to ensure that private information is not publicly shared.
• If your municipality provides wearable technology to employees, work with your IT Department to screen and delete private information saved on the system, especially any medical information.
• Update your records retention schedule to delete this information at a scheduled period.

Cities should also watch for changing state laws. In California, lawmakers passed SB 1130 (Reyes), which sought to prohibit secret audio or video recordings in places of business. The bill would have excluded hearing aids and similar devices, as well as body-worn cameras when used by a public officer in their official duties. (Gov. Gavin Newsom ultimately vetoed the measure.) You should discuss these policy considerations with your agency’s legal counsel to determine what protocols are best for your agency.