Episode 238 - What Employers Should Know About Wearable Technologies in Their Workplace

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General Counsel for Labor and Employment with the California Chamber of Commerce. Hello listeners. Technological innovation through the years has boosted convenience, efficiency and productivity for all people. Quite frequently, that same technology available for personal use finds its way into the workplace. Thinking about technological advances through the years, such as laptop computers creating portability of our desktop computers, and then smartphones putting those same computers into our pockets or the palms of our hands, it's no surprise that we are advancing into an age where we can now actually just wear highly sophisticated technology on our body. And this technology can provide a wealth of information and benefits for us. However, compliance questions have started to arise about the capabilities of this technology, from watches to glasses to jewelry to even clothing itself that has smart technology and how that might impact the workplace when it is worn there. So to discuss this cutting edge employment issue, we welcome Cal Chambers employment law expert Sharon Novak to the show. I am super excited to have you on today, Sharon.

Well, I'm happy to be here, Matt. I am a faithful listener to the podcast.

Excellent. And Sharon, as some of us may know, is one of our excellent employment law experts and that you may have the pleasure of speaking to on our labor law helpline. Should you be a member with us being on the helpline position, Sharon, to see real life issues as they emerge, such as the questions around wearable tech in the workplace that we're going to talk about today. So, Sharon, let's just start with some background on the types of calls that you have started to receive about wearable technology.

Sure. A couple months ago, I got a call from a member that concerned smart glasses. And I admit I had to do a little bit of research before I could get on the phone with the member because I had heard of smart glasses but wasn't sure what type of technology they provided. I had to educate myself in the particular scenario. The member had been told that an employee came to work wearing new prescription glasses and that they were a type of smart glass. So for that employer, it made them think, what am I supposed to do? I don't know what's going on. What are these things? So we're hearing concerns from other employers and members, and we're hearing that people who are, who are working with coworkers that have smart technology are concerned. My most recent call was from a member who had received a complaint from an employee that another employee was wearing smart glasses. He felt that his privacy rights were being invaded. Those glasses were also prescription.

Okay, so then let's Start with the basics. Obviously, there's no specific employment laws or regulations around employees wearing technology, technology in the workplace in this fashion. So how are you addressing these issues, especially around the concept of the recording capabilities of the technology?

Well, that is the main concern that employers have. What are they doing with these glasses? Are they video recording? Audio recording? Are they scanning proprietary information because they have AI capabilities? In these smart glasses, they also offer transcription of live conversations, which I think raises the question, is that audio recording? Because while you're not hearing voices, you're getting an exact readout of the conversation and the words that a person is saying. Because there are no specific rules currently about wearable technology, it's best to at this time default to existing rules and how they might fit in with the new tech. I think it's helpful to analogize to cell phones, which were a sea change when they started to show up in the workplace. But most employers have policies around use of cell phones in the workplace, especially around video and audio recording. Basically, employers can control recordings in the workplace to a certain extent. There is a critical constraint on an employer's authority to regulate an employee's ability to record. Under the National Labor Relations act, an employer cannot issue a complete blanket prohibition on recording in the workplace. This is because employees enjoy the right to engage in concerted activity to improve working conditions. Importantly, the NLRB has permitted secret or surreptitious recordings despite employer prohibitions in three different areas. The employee is recording unlawful conduct in the workplace, such as harassment, discrimination or workplace safety violations. Or the recording is part of a campaign to address or publicize working conditions. Or the recording concerns conversations about terms and conditions of employment. So employers have to be very careful on those issues. However, employers generally can have rules that protect strong privacy interests in their confidential information or trade secrets. And they can also regulate recording if it doesn't appear to be protected by the concerted activity exception.

Yeah, and I think that's a key point you make there at the end, Sharon, that the NLRA only protects concerted activities. Right. It's not just a one off from a single employee doing things. It's employees coming together to work to improve their working conditions. Now that you mentioned that we have policies that we can have in place and I know we've talked with some employers that do. And how would this new technology really change these policies, really, if at all?

I think where employer needs to look at and analyze their policies is whether they're limiting the coverage to cell phone or cameras or some type of device where it's obvious that a person is filming. Everyone I've talked to has had recording policies in some shape or form. But like the first person I talked to, it was devoted solely to cell phones. Basically it said you cannot record video or audio in the workplace with your cell phone. It did not mention other types of technologies. The most recent conversation I had, the member had a policy that simply addressed devices that recorded. This policy is better since it wasn't limited to cell phones. So I think this is a policy gap that may exist for a lot of employers because they've just limited it to the cell phones.

Great. So in addition to looking at our policies and updating those as required, we know wearable technology can serve a lot of functions beyond just audio and video recording. For example, in my research, since I've also had to research just like you, Sharon, since it's such emerging technology, Some of these technology can monitor an individual's own body metrics for their own health purposes. And things like prescription glasses, as you mentioned, obviously aid an individual's eyesight. So this means the usage of these dev may actually be assisting with an individual's disability, as is legally recognized at the workplace. How could this impact employers policies related to wearable tech in the workplace when we're talking about medical issues?

And that's a really good point, Matt. For example, having eyesight problems that need correction through glasses is or may be recognized as a disability under the law because poor eyesight is a physical condition that impacts major life activities such as working. Two of my calls related to smart glasses that were prescription glasses. So that means that the possibility of the employee needing to have these glasses must be considered. As with any disability concerns at the workplace, we always start with the interactive process. And that is essentially a discussion between the employer and the employee about what accommodations may be needed for the employee to effectively do their job. In essence, it's a collaboration between them. The aim is to figure out how the employee's disability impacts their job duties and what reasonable accommodation, if any, can resolve that impact. For example, having poor eyesight that requires corrective lenses would require employers to allow the employees to wear prescription glasses, I think. But the question here is rather the prescription glasses need to have all of the capabilities that smart glasses have. So that would be discussed during the interactive process. For example, asking the employee, is it necessary for the employee to have those glasses? So that's with the eyesight. But as you mentioned, these wearable technologies may be monitoring key bodily functions or measures of the employee. So they need those smart glasses for that reason, and the employer needs to also discuss those reasons with the employee. So that's a question we look at during the interactive process, and then we respond accordingly.

Yeah. And you know, just to kind of follow up on that, we always know with the accommodations we're providing, they need to be reasonable. And we can suggest our own accommodations in this case. Like you said, you can have prescription glasses, just not smart glasses, and that'll handle the disability impact. So, Sharon, with these issues all in place and with how new it is, what's the kind of game plan you're establishing for employers as some best practices to address wearable tech moving forward?

All right. I think the game plan is first, just be aware and knowledgeable that these smart glasses are here and they're actually the sales of them are skyrocketing. Employers need to be aware of these technologies and what they could provide in the workplace. What's happening when employees show up to work with smart glasses? Employers I speak to currently didn't know these things existed or didn't anticipate they'd come into the workplace. So they need to understand what the technology does. Second, look at your policies and develop a clear policy that will cover when smart glasses show up in the workplace. The absence of a policy makes it hard to address these issues and be consistent in the treatment of employees. I think an employer has to be thoughtful in developing these policies about whether they want to permit these wearables in the workplace. And if so, assuming there's no disability discussion that needs to be taken, how are they going to limit it or regulate it as to when they may be used and what recording features can be activated and under what circumstances. For example, if you are considering a policy that allows smart glasses because there's a light on, the glasses will show you when they are recording. Think about whether you want someone to be devoting their time to monitoring that light. I think more importantly, I have seen that both TikTok and YouTube have tutorials on how to disable the lights. And then as we touched on earlier, make sure your policy doesn't have a blanket prohibition against recording since there have to be carve outs for the NLRA rights and they have to be specifically tailored so that they don't limit an employee's right to to engage in concerted activity. Third, training, explain the policy to your employees so that they know in advance when they go get a prescription glasses that there may be an issue with wearing smart glasses in the workplace. Explain why you have the policy. These glasses can cause a lot of distractions. And so a person isn't going to be fully engaged in what they're doing. And they also make other employees worried about invasion of privacy. California is what is known as a two party state for audio recordings, which means all parties to a conversation need to consent to that recording in almost all cases. So if an employee is wearing smart glasses and is recording another employee without their consent, that can lead to a criminal violation and employees need to be aware of that issue. So it's important to explain to the employees why the policy is set up as it is. And finally, of course, working with counsel I think is important when addressing any novel concerns in the workplace and developing policies. They're going to be aware of how the law is developing and what would be best to have a policy that is regulating these smart glasses without running into any problems with the nlra.

Excellent. I think that's a lot of great places to start for us, especially since this is really just new technology for us. I really appreciate the concept of being transparent and communicating with your employees. You can only imagine the hurt feelings that come out when somebody goes and gets a prescription pair or say of smart glasses and how much they cost and then all of a sudden they can't wear them in the workplace. And then you have got now an additional morale issue on top of all that. So it does appear the future is here. Sharon, thank you so much for joining me today for bringing your real world insight into this emerging issue at the workplace.

Thank you Matt. I enjoy talking about this issue and.

Thank you listeners for joining this discussion on the workplace. Please share and subscribe to Cal Chambers podcast by visiting calchamber. Com.