Thursday, May 12, 2016

Internet Technology and Employer Monitoring

Internet technology and the internet of things pervasive expansion in our everyday lives has become a crazy, a thing to do, and something to use by employers.  The risks of privacy are overlooked as well as liabilities when an employer goes too far.  The application of technological uses to keep track of employees, staying in touch with their work progress, whether in town or out, does place challenges.  We all hear about notice requirements given to employees allowing for express consent, but that may not be enough when we consider the extensive reach and ability of what is being given to employees under the rubric of wellness, company productivity, and operational efficiency.  Needless to say, employers desire ‘healthy’ employees who have ‘healthy’ lifestyles.  Conversely, if an employee is in the private sector, the limits imposed upon by the U.S. Constitutions 4th and 14th Amendments do not assail the employer, except for privacy considerations.
The legal considerations for the use of internet of things tracking means of employees run into work related and non-work related aspects.  Technology allows through employers given cell phones, wearables, work identification cards that house transmitters, and RFID tags (radio frequency identification), to monitor employees whereabouts during work hours and beyond.   Where should the line be drawn?  If an employer is utilizing artificial intelligence technology to monitor its employees even outside of work, in Florida, it could be considered a tort of intrusion upon seclusion, based on the employees demonstrating that its solitude or private affairs and concerns were intruded upon by the employers’ technological use.[1]
Aside from internet technology tracking whereabouts, the devices companies offer employees to allow the employers to know their employee activities to the extent of knowing their heart rate, activity frequency duration, and time, to name some details that comprise an employees’ biometric data profile.  On this point attention must be drawn to the prohibition placed on employers by the Genetic Information Nondiscrimination Act of 2008 (“GINA”) prohibiting them from using genetically acquired information for employment and insurance.  Furthermore, we must note the prohibition imposed upon employers by the Health Information Portability and Accountability Act (“HIPPA”) not allowing employers to acquire employee health information.
Yet, as the technology continues to advance and its use becomes commonplace and pervasive in all aspects of life, the laws are not up to speed to address the fine lines of privacy, the tort of intrusion upon seclusion, and employers’ wellness programs and their employees’ participation.  Monitoring laws are taking shape throughout the country but until there is a clear stance of where they are headed, employers and employee should be mindful of several considerations.  For instance, employees should be the only ones able to see the generated biometric data profile and not the employer.  Any video surveillance in the workplace is prohibited in restrooms where an employee has a reasonable expectation of privacy in restrooms.[2] Employees have no reasonable expectation of privacy in emails going through employer’s server, so email monitoring is permissible.[3]  Some states have imposed notice requirements on employers who use monitoring technology whether in its emails, the internet, and their phones.  Some states recognize an employee’s privacy interest allowing them to claim invasion of privacy where they have a reasonable privacy expectation.  So, as employees play with their gadgets, emails and work phone lines are monitored, work cell phone use serves a way for our employer to know we are hard at work, and our wearables log how hard at play we truly are, we need to 'exercise' [pun intended] caution and be aware of rights and restrictions, whether you are an employer or an employee.
[1] Benn v. Florida E. Coast Ry. Co., (S.D. Fla. 1999).
[2] Sec. 810.145, Fla. Stat.
[3] Leor Exploration and Production, LLC, et al., v. Aguiar, (S.D. Fla. Sept. 23, 2009).

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