The U.S. Equal Employment Opportunity Commission has released a new fact sheet addressing the use of wearable technologies at work and their implications for employee rights under anti-discrimination laws.
On December 19, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) released a significant fact sheet titled “Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws.” This document serves as a guiding resource for employers incorporating wearable technologies into their workplace practices. The introduction of this fact sheet underscores the increasing scrutiny surrounding the use of such technologies and the potential implications for employee rights under existing anti-discrimination laws.
Wearable technologies encompass a variety of digital devices that can be worn bodily, including smartwatches, smart glasses, and safety helmets equipped with sensors capable of monitoring hazards or tracking an employee’s location through GPS. While the EEOC did not provide a strict definition for “wearable,” the fact sheet emphasises that these devices collect various kinds of data, including biometric information and movements.
The EEOC categorised the risks of using wearables into three principal areas: the collection of information from wearables, the use of this information, and the need for reasonable accommodations concerning wearables. It highlighted significant concerns regarding the collection of medical data through wearables, warning employers that devices capable of monitoring vital signs, for instance, might violate the Americans with Disabilities Act (ADA). The EEOC clarified that mandated use of wearables that gather medical information could be construed as conducting medical examinations or making disability-related inquiries, which are only permissible under strict conditions linked to job necessity.
Employers were cautioned against adverse employment actions based on metrics derived from wearable technologies. For example, if a device inaccurately assesses productivity, particularly influenced by factors such as race or ethnicity, taking punitive measures against the affected employees could result in violations of the Title VII of the Civil Rights Act of 1964 or the Genetic Information Nondiscrimination Act (GINA).
Furthermore, the EEOC noted that adherence to the ADA may necessitate accommodations for employees based on factors such as religion, pregnancy, or disability, indicating that compliance is not merely about the technology itself but also about its implications for employees’ individual needs.
Reports indicate that this fact sheet aligns with broader sentiments expressed by regulators on workplace surveillance. Jennifer Abruzzo, the General Counsel of the National Labor Relations Board (NLRB), addressed various employee-monitoring technologies in a memorandum issued in October 2022. Abruzzo emphasised the potential for misuse of technologies, stating that employers could jeopardise employees’ Section 7 rights—rights relating to collective bargaining and organisational activities—if they use these tools to interfere or gain insights into protected activities.
The rise of artificial intelligence (AI) technologies in the workplace adds another layer of complexity. The EEOC has previously highlighted concerns about technological equity and the risks posed by AI to certain employee groups, especially those with disabilities. Although the EEOC has not issued guidance on AI in recent months, it continues to engage in discussions reflecting a comprehensive governmental approach to emerging AI-related employment issues.
Concurrently, states across the U.S. have progressed with legislation targeting employee monitoring technologies. Historically, states like Illinois and Texas have governed the collection of biometric data. Newly enacted laws in Colorado require explicit employee consent before biometric data collection, while states such as Hawaii and New Jersey have introduced legislation mandating consent and notifications for location tracking.
Moreover, emerging trends in workplace surveillance legislation indicate a shift towards increased worker privacy. New York has joined Connecticut and Delaware in mandating written acknowledgment of various workplace surveillance practices. Proposed regulations in California seek detailed risk assessments and privacy requirements for employee monitoring.
Internationally, the regulatory landscape for employee surveillance may be markedly stricter than in the U.S. Many countries enforce comprehensive data protection laws that impose stringent requirements on personal data collection, leading to potential conflict for U.S. employers operating abroad.
As the regulatory framework evolves, it is crucial for employers considering the adoption of wearables in their operations to engage with legal expertise. A comprehensive assessment of the wearables’ data collection, adherence to existing laws, and measures to ensure employee rights and safety must be conducted prior to implementation. This diligence is paramount not only in adhering to the multitude of federal and state laws but also in safeguarding against potential legal pitfalls associated with the deployment of such technologies in the workplace.
Source: Noah Wire Services
- https://shawlawgroup.com/2024/12/new-eeoc-guidance-on-the-use-wearables/ – Corroborates the EEOC’s release of a fact sheet on wearables in the workplace, including the collection and use of wearable-generated information and the need for reasonable accommodations.
- https://www.thehortongroup.com/resources/eeoc-examines-wearable-tech-and-its-implications-for-federal-discrimination-laws/ – Supports the EEOC’s guidance on the application of federal employment discrimination laws to wearable technologies, including data collection and storage, and the potential for medical examinations or disability-related inquiries.
- https://shawlawgroup.com/2024/12/new-eeoc-guidance-on-the-use-wearables/ – Details the risks of using wearables, such as violating the ADA and other anti-discrimination laws, and the importance of ensuring data accuracy and safe storage.
- https://www.thehortongroup.com/resources/eeoc-examines-wearable-tech-and-its-implications-for-federal-discrimination-laws/ – Highlights the EEOC’s emphasis on employers’ responsibilities regarding the collection and use of wearable data, and the necessity for job-related and business-necessity criteria.
- https://shawlawgroup.com/2024/12/new-eeoc-guidance-on-the-use-wearables/ – Discusses the need for reasonable accommodations based on factors such as religion, pregnancy, or disability, and the potential for adverse employment actions based on wearable data.
- https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-issues-memorandum-on-electronic-monitoring-and-surveillance – Although not directly linked, this source from the NLRB website can provide context on Jennifer Abruzzo’s memorandum regarding employee-monitoring technologies and their impact on Section 7 rights.
- https://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=102-0053 – Supports the mention of state legislation, such as Illinois, governing the collection of biometric data.
- https://leg.colorado.gov/bills/sb23-113 – Corroborates the new laws in Colorado requiring explicit employee consent before biometric data collection.
- https://www.njleg.state.nj.us/2022/Bills/S2000/1791_I1.HTM – Supports the legislation in New Jersey mandating consent and notifications for location tracking.
- https://www.nyc.gov/site/cchr/law/employee-monitoring.page – Corroborates New York’s regulations mandating written acknowledgment of various workplace surveillance practices.
- https://oag.ca.gov/privacy/california-consumer-privacy-act – Provides context on proposed regulations in California seeking detailed risk assessments and privacy requirements for employee monitoring.