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Banning Wearable Tech at Work?

Wearable technology holds both great promise and great peril in the workplace of the future. Here's what HR leaders need to know to get ahead of this latest tech curve.

Tuesday, August 26, 2014
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As with any new advancement in the world of computing, the advent of wearable technology - such as Google Glass - it raises a number of issues for HR leaders at organizations looking to make the most use of the technology.

Chief among those issues is that such technology allows employees to easily, quickly and covertly record images and data that may include confidential information, trade secrets or other potentially damaging information. Wearables also, technically, allow the ability to monitor others' location and physical status, which can, in turn, raise a host of privacy concerns. Add to these concerns issues related to the National Labor Relations Act, and many employers now have cause to consider banning wearables completely from their workplaces.

Google Glass is arguably the most recognized "brand" when it comes to the new category of wearables. With Glass, a small screen is placed just above one eye and allows users to search the web, take photos or do a variety of other activities via voice commands. Google has also introduced Android Wear, technology used in wrist- or smartwatches.

While predictions about to what extent the wearable market -- which currently encompasses devices that include glasses, watches, headphones and fitness gear -- vary, it's an issue that some HR professionals are dealing with now.  

"Wearables are here to stay," says Heather Egan Sussman, the Boston-based co-head of the global privacy and data protection group at McDermott Will & Emery. Workplaces need to be taking steps to identify and answer the various questions about wearable -- and other -- technology that can impact their workplaces in both positive and negative ways.

The "right" answers to these questions will vary by industry, company and position, with the accompanying risk of the decisions made ranging from none (ban all devices completely) to still unknown.

Michael Schmidt, vice chair of Cozen O'Connor's labor and employment department and the New York office's managing partner, says the main HR challenge is to find "the proper balance between and employee's reasonable and protected interests in communicating and depicting workplace conditions and the company's interests in protecting its valid business interests and ensuring they have productive employees during working time."

There may be some very practical and very effective ways that wearables can provide relevance and value to organizations. For instance, says Jason Storipan, an associate in the New Jersey office of Fisher & Phillips, monitoring a production line for quality control purposes. Wearables might also be used to detect fatigue among medical professionals, or others in high-risk industries, for instance. As experience with this new technology grows, it's likely that companies will develop a myriad of practical applications for these tools. For now, though, concerns are preeminent.

For instance, what if an employee uses these devices to record and convey trade secrets? What if they use them to harass or intimidate other employees? What if they use them to record interactions with their managers that they later use against the company in some way?

There are many "what ifs" that must be considered when making determinations about whether, and how, wearables have a place in your work environment.

For now, simply banning wearable devices altogether may seem like the easiest and safest route, but even that stance may be problematic for some, says Schmidt, who says this is an area that the NLRB has taken an interest in. Banning the devices, he says, "could infringe on employee rights to engage in protected concerted activity." That doesn't mean that employers aren't able to protect their proprietary or sensitive information, but it can have an impact on how policies are crafted. Policies, plural.

Importantly, notes Schmidt, wearables don't simply require a single new policy related strictly to wearables. Along with other technological devices that have preceded them (such as smartphones, for instance), wearables need to be considered more broadly in terms of how their use may impact a wide range of policies and business practices -- from anti-harassment/anti-discrimination policies to the use of company equipment to the discoverability of data and more.

"What you want to do as a company is to almost cross-reference and weave together your workplace policies with these considerations," says Schmidt.  

There are two angles to approach this from, suggests Sussman -- from the standpoint of employers using the devices for work-related activities, and allowing employees to use their own, or employer-provided, devices at work. Both angles require consideration of a range of issues. But, she stresses, these issues are really not so different than the concerns that employers have always had around privacy, productivity and the protection of their assets. "The old rules apply," she says.

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From an employer use standpoint, she says, the steps in introducing wearables to the workplace would entail:

*     Identifying a specific business-use case;

*     Considering any related potential privacy concerns;

*     Identifying how to mitigate those concerns;

*     Considering incidental impacts - for instance, issues related to how the data will be preserved and how that fits within your organization's records retention program;

*     Creating policies;

*     Train staff;

*     Deploy the technology; and

*     Take a look back in six or 12 months to evaluate whether the original purpose has been served and if any issues have emerged that need to be reconsidered or addressed.

The same process can be applied when considering the employee-related use of wearables, says Sussman. If allowing wearables for personal use, what are the risks of monitoring that use? What will employees be permitted to record; what may they not be permitted to record? "You would take into consideration workplace privacy laws that cover surveillance and workplace monitoring," she says. And, again, you would create policies, train staff, monitor and revise as necessary.

Policies are important, but training is mandatory. Beyond that, employees must be held accountable to the policies and expectation must be clear.

"If they don't follow the policies," says Sussman, "then you discipline employees, you potentially take away the benefit or the ability to use that technology, up to and including termination if they're not able to follow the rules of the road that you've set out for using wearables in the workplace."

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