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Invasion of the Body Monitors?
Software giant Microsoft has filed a patent application for a computer system that uses wireless sensors that would allow employers to gauge employees' productivity, physical well-being and job competence via physiological monitoring. Is this 2008 or 1984?
Redmond, Wash.-based software maker Microsoft has filed paperwork with the U.S. Patent and Trademark Office for a new computer system that would give employers unprecedented, real-time access to their employees' most basic physiological information, including heart rates, body temperatures, movements, facial expressions and blood pressure. The application -- filed approximately 18 months ago and published by the Patent Office last month -- goes on to note the other uses of the program, including notifying employers when workers become stressed or frustrated. It can also be used to measure performance by comparing data against other users. Critics say the program would allow employers to act as "Big Brother" while employment lawyers bring up a host of potential legal issues, such as invasion of privacy and violations of federal workplace laws, resulting from use of such a program. Microsoft, for its part, says it has no current product plans to bring the innovative system to market. But, says Horacio Gutierrez, vice president of intellectual property and licensing at Microsoft, the system might be used in future products after the patent has been approved, which is typically three to five years after filing. "This particular patent application, in general, describes an innovation aimed at improving activity monitoring systems and uses the monitoring of user heart rate as an example of the kind of physical state that could be monitored to detect when users need assistance with their activities, and to offer assistance by putting them in touch with other users who may be able to help," says Gutierrez. "If this application were ever to be incorporated into a product, Microsoft would work with its customers to help ensure that they use the technology responsibly and lawfully," he adds. "Consistent with other products that our customers use and that we provide, Microsoft would provide guidance to customers on the recommended use that would be consistent with the high public privacy standards that Microsoft uses to develops its own products and services." The legal implications of monitoring and collecting employees' physiological data through a program such as Microsoft's could possibly lead employers into trouble involving federal laws such as the Americans with Disability Act and the Health Insurance Portability and Accountability Act, says Laura A. Brodeur-McGeorge, an employment attorney and a partner in the labor and employment practice at the Detroit-based law firm of Honigman Miller Schwartz and Cohn. "If an employee is monitored, they could later argue (most likely in response to some type of adverse employment action) that they have been discriminated against due to a disability, based on information the employer acquired by use of the monitoring device," she says. "While employees can consent to use of the device and waive any privacy claims, they cannot waive the ADA claims that could be brought by themselves or the [Equal Employment Opportunity Commission]," she says. "It would seem that collection, use and storage of any data generated from the device could also implicate HIPAA." It's no surprise that labor unions are also registering their disapproval with the idea of a company biometrically monitoring its workers via wireless sensors. "Unions would have strong objections [to using such programs] because such a system would personify 'Big Brother' in the workplace," says Caren Benjamin, a spokesperson for the AFL-CIO in Washington, "[The program] raises privacy concerns with respect to health as well as a more basic privacy concern about the integrity of one's physical and emotional/psychological 'self' and well-being. "Employers do not have the right to invade one's body, no matter what the method. We would hope that smart, enlightened employers would not use the system," she says. The patent application drew forth a variety of opinions -- both positive and negative. "Because the technology exists, it does not mandate that an employer uses it," says Robert J. Vale Jr. CEO of ClearStar.net, a Cumming, Ga.-based background screening firm. "To attempt to ascertain an employee's intent through continuous physiological predictive modeling undermines the very core element of trust that is a vital necessity of any successful organization," he says. "This type of technology, misused by overzealous employers, would not only be an affront to the sovereignty of the individual, but be stifling to the success of a progressive business culture." Dan Yager, general counsel for the Washington-based HR Policy Association, an organization of senior HR leaders, says his organization has not yet seen a demand for such a product. However, he thinks the group's members would be willing to explore the option if certain conditions are met. "It's hard to gauge the level of interest among our members," he says. "They are generally willing to at least take a look at anything that promotes a healthy workplace, if done in a manner that respects individual privacy needs and expectations." According to the patent application, "the system can monitor the user involved in a particular activity and recognize an implicit need for assistance. For instance, the system can detect that the user's time or effort spent on an activity has exceeded a threshold, and then can conclude that the user needs help. ... The system can also automatically detect frustration or stress in the user via physiological and environmental sensors and then offer or provide some type of assistance accordingly." Because each worker's heart rate and other bodily statistics vary greatly, the program takes that into account and creates a baseline for normal activity. "Baseline or 'normal' parameters for each user can be established," the application states. And the application states the system will work even if a worker is away from his or her desk at the office. "User activity performed across various devices such as a PDA, laptop, desktop computer, smart phone, and/or pocket PC phone can be recorded in one or more logs," it states. "The systems and methods provided herein can monitor such logs in order to aggregate data about one or more activities. "From this data, statistics related to performance, success rate, frequency of problem, and the like can be provided to users or can be employed to gauge a target user's success, performance, or efficiency with respect to other users." Rowan Manahan, founder of Fortify Services, a Dublin, Ireland-based career consultancy firm and author of Where's My Oasis?, writes on his blog that the Microsoft patent application is making at least one grim figure appear more personable. (Hint: It's not Bill Gates.) "George Orwell's Big Brother is starting to look positively benign and Teddy-bear-like, isn't he?" Manahan writes.
January 28, 2008 Copyright 2008© LRP Publications |
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