The Legal Side of Jobsite Technology

 OP RESIDENTIAL 01By Jeremy P. Brummond and Patrick J. Thornton

Technology is integrated into just about everything in our lives. Wearable products in particular are designed to make us more efficient, productive, connected, and healthy. Consumers may think of wearable technology as purely personal, but wearable technology is increasingly becoming part of the workplace. 

A construction jobsite is a perfect place to witness the integration of the workplace and wearable technology. For example, California-based DAQRI has developed a “smart hardhat” that features a visor that presents visual overlays of information, such as instructions and warnings. The helmet also features cameras and sensors that can measure, record and track information about the wearer’s surroundings. Similarly, GPS-enabled safety vests track workers throughout a geo-fenced jobsite to ensure avoidance of danger zones.

Over time, the marketplace will test and evaluate wearable devices for their function, utility and value, and some products will become staples of the workplace. As employers weigh the cost-benefit of these products, they also need to consider a host of legal issues. 

Privacy Concerns 

Wearable technology is changing our privacy laws. These products can easily track our location and record our communications – whether work-related or personal, important or mundane, verbal or nonverbal. An employer’s ability to monitor employees’ behavior presents data privacy issues.

The right to privacy is not absolute in the workplace. The expectation of privacy has gone down over time. In 1986, Congress passed the Electronic Communications Privacy Act (ECPA) and the Stored Communications Act (SCA). These laws generally prohibit the intentional interception, access and disclosure of wire, oral or electronic communications and data, but they contain employer-centric exceptions.  For example, the SCA does not prohibit access of electronically stored communications by an employer that provides the electronic communications service. To this effect, employers generally have handbooks or Internet policies that state employees should have no expectation of privacy in their use of an employer’s information technology.   

Despite the ECPA and SCA, more employee friendly laws are emerging. States such as California, Connecticut, Delaware, Texas and Virginia have enacted legislation that restricts tracking individuals. Still, states can vary widely on this issue. For example, California extends a constitutional right to privacy to the employer-employee relationship; a monitored employee may sue his or her employer for invasion of privacy in certain circumstances. Connecticut’s law is less employee friendly and provides that employers do not have to give written notice of electronic monitoring of employees if the employer reasonably believes that an employee is engaging in illegal conduct and the monitoring may produce evidence of this. 

The National Labor Relations Board (NLRB) is also increasingly aware of these issues. Hidden surveillance cameras are a mandatory subject of collective bargaining because they have the potential to affect employee discipline and job security. However, where employees are already monitored, the implementation of new monitoring technology may not be a mandatory subject of bargaining. Certainly the ease by which employers can surveil employees wearing mobile devices will only increase the NLRB’s scrutiny of employers.

Health Information Concerns

Although many wearable technology devices are designed to monitor our health and wellness, it can raise concerns when those devices are used as part of the job or when employers incentivize use of these devices. Employers are generally prohibited from accessing information like heart rate and other indicators of health, but employers are not prohibited from obtaining health information as part of wellness programs. Further, where an employer offers a workplace wellness program directly (and not as part of a group health plan), the health information collected from employees by the employer is not protected by the HIPAA rules.

The Americans with Disabilities Act is another font of concerns. The collection of medical information through wearable technology could be considered a medical examination under the ADA. If it is, then the employer will be required to show that the medical examination was “job-related and consistent with business necessity.” Additional issues may arise if the information gathered allows an employer to determine if the employee has a disability, depending on what actions the employer takes as a result of discovering this information. 

Safety Concerns

There are also safety concerns about wearable technology, especially products that offer a heads-up display, such as the DAQRI smart hard hat or the (now discontinued) Google Glass. When the interaction with images on heads-up displays is coupled with the responsibilities of operating or driving heavy equipment, such as Bobcats, cranes, and forklifts, the distractions can become quite dangerous. If any accident were to occur while using such devices, workers’ compensation and other claims would certainly be brought against the employer. Contractors, manufacturers and other employers implementing and/or permitting these types of products in the workplace should consider revising their policies and safety protocols to restrict when and where workers may use heads-up displays in order to limit liability and monitor their state legislation to ban the use of wearable computers with head-mounted displays while driving. 

Employers wanting to implement wearable products should consider these issues when deciding what products to use and how to have their employees use them.  

Jeremy P. Brummond practices in the litigation department at Lewis Rice in St. Louis, Missouri, with a focus on engineering and construction. He can be reached at jbrummond@lewisrice.com.

Patrick J. Thornton practices primarily in the areas of construction and environmental law, commercial litigation, and medical malpractice at Lewis Rice in St. Louis, Missouri. He can be reached at pthornton@lewisrice.com.

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