Worker Privacy and Security in an Internet of Things

03 October 2016 Labor & Employment Law Perspectives Blog
Authors: Connor A. Sabatino

The Internet of Things (IoT) refers to the phenomenon of everyday objects like phones, refrigerators, and cars connecting to the internet in order to send and receive data. While the IoT promises a future of convenience and control over our daily lives, it also presents challenges outpacing the current body of employment law. For example, security badges are becoming smarter than passive magnetic strips, bring your own device (BYOD) policies connected to employer-run servers are blurring the lines between work life and personal life, and the explosion of wearable devices utilized in wellness programs is a proverbial Pandora’s box of privacy and security concerns.

Employers lack clear guidance on how to handle privacy concerns with the IoT. The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance regarding privacy in the context of employee wellness programs, but has not addressed more general privacy concerns, including the ability to track employee movement.

IoT advances allow for greater GPS tracking of employee movement. But the ability to track employees does not end when an employee goes on a lunch break or heads home for the day. As a result, employers must be cognizant about any data collection that continues outside the workplace.

These very same privacy concerns also flow back toward employers, as the proliferation of connected devices that extend beyond the digital perimeter of the workplace each present a point of intrusion into workplace computer systems. An employee wearable that connects to employer networks can raise security concerns because for many hours of the day that device is beyond the custody or control of the employer.

While the law catches up to these issues, employers must consider the need to clearly document privacy policies surrounding devices that are trackable or continuously record data. These policies can be outward-facing and inform employees as to what data might be obtained by the employer, and inward-facing to lay out the ground rules of what data is collected and how, and for how long, it is maintained. These policies can detail not only employer obligations surrounding such data, but also employee obligations surrounding security, such as protocol for dealing with a lost device.

Also, the sheer volume of data that can be amassed presents its own liability concerns. An employer that does not actively control its data collection may sweep up more information than it needs to know. Taking otherwise legal adverse action against an employee can become complicated if it turns out the employer possessed information about the employee’s activity or whereabouts outside of work hours. Even if such information played no role in the employment decision, the data nonetheless provides the employee with an additional basis to allege discrimination or other unlawful activity. For example, an employee might claim they were fired not because of performance but because the employer disapproved of some protected or legal activity outside the workplace that the employer learned of through an IoT device.

The slow pace with which the EEOC has addressed Americans with Disabilities Act and Health Insurance Portability and Accountability Act concerns in wellness programs suggests it will be some time before employers have formal guidance on broader technological privacy issues. In the meantime, employers are encouraged to stay in communication with legal counsel in order to navigate the rapidly changing landscape of the Internet of Things.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services