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Wearable technology boom creates employment liability risks

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Wearable technology already is taking root in the workplace, and experts agree these new devices will have a vast and long-lasting effect on how companies conduct business. Tracy L. Moon Jr., a partner in the law firm of Fisher & Phillips L.L.P., discusses how businesses can be proactive in establishing use and training protocols as this new technology quickly becomes more common.

Wearable devices are the latest advance in technology, and businesses must quickly prepare to confront this trend.

Current use of wearable technology in labor-intensive industries demonstrates the positive effect it can have on productivity and profitability. In the retail industry, for example, sales staff wear wireless headsets so they can respond to customer inquiries quickly and accurately. In the distribution industry, wearable technology in the form of glasses that incorporate high-definition cameras are worn by warehouse employees and are used to scan bar codes to ensure the correct item is pulled for shipment to minimize returns, direct the sequence of item selection to improve efficiency, advise of fragile items to prevent breakage, and warn of hazards to avoid injuries.

Based on the successful use of wearable technology, businesses can expect the pace of its usage to increase significantly as new devices are introduced and software and application developers create programs and applications that better fit the operational needs of businesses. The use and presence of wearable technology may improve productivity and profitability, but the challenges it presents cannot be overlooked by businesses. The interest of consumers in wearable technology devices such as Google Glass and Apple Inc.'s recently announced line of watches does not necessarily mean that employees will accept their use in the workplace or that they will use wearables for appropriate and lawful purposes.

Businesses should be prepared to address the possible resentment of employees to being required to use wearables when they learn that businesses are able to receive a great deal of information about their activities, including information about their personal and private nonwork-related activities.

Some wearable technology is capable of providing employers information about employee health, their location and their activities on weekends, evenings, vacations and holidays. Although businesses have legitimate reasons for using wearable technology, employees have appropriate concerns that the information and data obtained could be used in a manner that adversely affects them and their continued employment. In addition, employees have legitimate concerns that information received by their employers could be stolen and used for unlawful purposes.

To minimize these risks, businesses should adopt a strategy that overcomes employee resentment and concerns. A proactive approach to dealing with these potential problems is likely the best strategy. Businesses should make employees aware of the legitimate business reasons for using wearable technology, the steps being taken to limit the gathering of personal and private information about them, and actions implemented to secure the information and data received to prevent unauthorized distribution and use.

To further ensure the desired results of using wearable technology are achieved, businesses should develop policies and procedures addressing the work-related use of wearables. These policies and procedures should cover why and how wearable technology will be used with as much specificity as possible. Businesses should train employees on these policies and procedures and give them an opportunity to ask questions and voice any concerns.

Following the training, businesses should obtain a written acknowledgement signed by employees stating their understanding of the policies and procedures and consenting to the business use of the information and data obtained using wearable technology. The written acknowledgment from employees should foreclose them from contending later that unknown rules were imposed on them, and their privacy was violated.

Businesses also should take actions to ensure that employees do not use wearables for inappropriate or unlawful purposes. To avoid these potential problems, companies should develop policies or amend existing policies to cover wearable technology and its use, and take steps to ensure that employees comply with them.

There are several important policies companies should review in relation to wearable technology use by employees. They include policies prohibiting discrimination, harassment and retaliation; addressing reasonable accommodation; covering the use and misuse of company property; covering safety; protecting confidential and proprietary information; covering electronic communications and social media use; prohibiting unauthorized audio and video recording and transmission; and covering the operation of motor vehicles. The development and revision of policies are of little value to businesses unless managers and supervisors are trained in them and unless they are consistently applied to prevent claims of discrimination.

At this time, the potential value of wearable technology to businesses seems to be enormous. Wearable technology can provide salespersons access to information in seconds about products, services and customers that can be useful in closing a sale. Wearable technology can provide information to experts in the medical field about patients in remote areas that could be invaluable to delivering effective medical care. Wearable technology can provide construction workers real-time, virtual access to building plans that can speed-up project completion. Wearable technology also can allow disabled individuals to perform essential job functions that they would not otherwise be able to perform.

Many technology experts predict that wearable technology eventually will make laptop computers, smartphones and tablets obsolete. Technology experts base their predictions on the fact that wearables are more durable and more efficient than carrying a laptop computer, smartphone or tablet while working. In addition, wearable technology can unobtrusively provide workers and management real-time access to information and data useful in ensuring jobs are performed at optimum levels with minimal errors and in compliance with company policies and the law.

Because of the positive effect wearable technology likely will have on job performance and the necessity to keep pace with competitors to satisfy customer needs and expectations, businesses will have few other options but to use wearables in their operations. Similarly, because of the significant interest of consumers in wearable technology, businesses probably will be faced with employees who wear wearables at work for personal reasons.

Before implementing the use of wearable technology in the workplace, businesses must carefully consider the pros and cons of doing so and evaluate potential employee resistance to its use. In addition, businesses should carefully consider how they will handle employees who wear or use wearable technology devices at work for personal reasons unrelated to work.

The success or failure of employing wearable technology to achieve desired improvements in profitability and productivity and minimizing employee relations and legal issues hinges on whether employers carefully evaluate the benefits and risks of wearable technology use in the workplace based on their objectives and goals before issues arise. The introduction of wearable technology into the workplace seems to be unavoidable, so now is the time for businesses to become prepared for its inevitable presence in the workplace.

Atlanta-based Tracy L. Moon Jr. is a partner with labor and employment law firm Fisher & Phillips L.L.P. He can be reached at tmoon@labor lawyers.com and 404-240-4246.