As the uses for technology in the workplace multiply and employers seek technology-based solutions for their business needs, one Florida hospital has begun to use “wearables” to track employees during their work shifts. The hospital has placed location tags on employee identification badges (which are worn at all times while working) in order to monitor their movements. The location tags produce a heat map that allows the hospital to see patterns that it believes it can use to improve patient care.
Worker monitoring and tracking are not new. Trucking companies have used it for years to stay aware of the location, stops, and driving patterns of their drivers. Restaurants use technology-based employee monitoring to increase sales and reduce theft, and a recent study suggests that the monitoring works. HR tech companies offer a variety of monitoring technologies intended to improve employee efficiency and accurately record time worked. So far, monitoring during the work day has not been the subject of a successful legal challenge. As the methods of monitoring increase – including wearables, that can tell employers things like how long an employee took in the bathroom or the break room – and as more employers engage in it, we can expect lawsuits and legislative scrutiny.
Some states, like Connecticut and Delaware, require employers to notify their employees of monitoring activities. California has gone further and extended its constitutional right of privacy to the employer-employee relationship. In California, an employee may sue an employer for invasion of privacy based on monitoring if the employee has a legally protected privacy interest and a reasonable expectation of privacy, and can show that the monitoring constituted a serious invasion of privacy.
As employers consider the rewards and risks of monitoring technology, they must keep in mind that the National Labor Relations Board prohibits employers from monitoring employees when they are engaged in protected concerted activity, such as meeting with union representatives or meeting to discuss workplace conditions. Although video and audio monitoring are more likely than location monitoring to violate employees’ rights under the National Labor Relations Act, even location monitoring could become an issue and should be carefully considered before implementation.