Technology in the workplace

1. LeBeau▪ThelenLLP ATTORNEYS AT LAW Technology in the workplace Daniel K. Klingenberger, Esq.

2. LeBeau▪ThelenLLP ATTORNEYS AT LAW What types of wearable technology can you think of ? • Smart watches • Fitbits • Google Glasses • Smart Shoes • LED Clothing • Under the skin devices • 3D Printing

3. LeBeau▪ThelenLLP ATTORNEYS AT LAW Your WHOLE body can be covered in technology

4. LeBeau▪ThelenLLP ATTORNEYS AT LAW How can technology be worn? • As fashion • A fitness tracker • As treatment for hearing • As remote treatment for speech & voice disorders • As a data and communications collection • Stress management • As a gauge for alertness and energy level

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6. LeBeau▪ThelenLLP ATTORNEYS AT LAW A little History • Workforce management technology first appeared in the late 1800s in the form of time clocks. This innovation helped companies pay employees correctly for the hours they worked. • The assembly line revolution of the 19th Century that increased workplace efficiency. • The move from mechanically punched time cards to computerized time clock software reduced payroll processing costs and improved efficiency, and it helped control “buddy punching” (employees clocking in for other coworkers). • Installation of technology that monitors e-mail and computer use. • Organizations stay as connected to colleagues as they do to friends and family in their personal lives and lets them innovate at record speeds while improving workplace satisfaction, retention and recognition.

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9. LeBeau▪ThelenLLP ATTORNEYS AT LAW Is there a definition of “wearable technology”? • Not officially • Perhaps this is a “know it when you see it” area • Has been referred to as electronic technologies that are “incorporated into items of clothing and accessories which can be comfortably worn on the body”. “Wearable computers may be worn under, over, or in clothing, or may be themselves clothes” • RFID implanted under skin • More sophistication than a mobile phone in providing sensory and scanning features • Can monitor vital signs such as cardiac conditions and blood glucose, and send biofeedback in real time • Far reaching impact in fields of health, fitness education, finance, aging, disabilities, gaming and entertainment

10. LeBeau▪ThelenLLP ATTORNEYS AT LAW Are employees and Employers ready? • Although many people want their employers to be involved in their health and wellbeing, they are not comfortable in sharing their data. • When polled 38% of people do NOT trust their employer to use the data they collect to benefit the employee. • Another 25% of people said they would be willing to share their data if they were given an incentive, such as increased pay or flexible working hours. • Another concern raised was the tracking of employee health, and if employers would be justified in raising the costs of unhealthier employees health insurance. • Millennials are more likely to share data and use new technologies in the workplace.

11. LeBeau▪ThelenLLP ATTORNEYS AT LAW Some benefits: • People can travel and interact with the world virtually, without ever leaving their living room or office. • Nearly every piece of knowledge accumulated since the beginning of time is a voice command away. • Entire companies are now based solely on technology intertwined within: Amazon, Apple, Fast Food (McDonalds, Starbucks, etc.), and many more. • Easy to assess performance among employees, allowing incentives for employees to advance in the workplace. • Technology is always changing, and updating. Sometimes on a daily or weekly basis. Making it easier for employers and employees to keep up with the technology.

12. LeBeau▪ThelenLLP ATTORNEYS AT LAW Some Negatives: • It’s expensive (for employers and employees) • Technology can be distracting from the actual job at hand • Not all employees are willing to use the technology • Older employees may feel discriminated against for not being able to use and work with advancing technology. • Does the technology leave with the employee or stay exclusively at the workplace? • Where is the line drawn between the employer obtaining useful information from the employee and the right of privacy?

13. LeBeau▪ThelenLLP ATTORNEYS AT LAW Public Employee Insurance Agency (PEIA) • The Public Employee Insurance Agency (PEIA) in West Virginia implemented the Go365 program in which PEIA insurees earned points by completing health assessments, meeting a variety of health goals and participating in various healthy lifestyle and fitness programs. The data is collected and used to determine monthly insurance rates. • Those who met certain point thresholds received “bonus bucks” that could be exchanged for gift cards or fitness equipment.

14. LeBeau▪ThelenLLP ATTORNEYS AT LAW Public Employee Insurance Agency (PEIA) • Go365 was protested by teachers and staff at local schools in Charleston, West Virginia, the teachers stated that the insurance’s non-opt out plan was (a) an invasion of privacy and (b) discriminatory. • Insurees expressed concern that those who haven’t earned enough points will have their premiums increased by $25 a month and will have a $500 increase in their deductibles. • They also complained that healthy and unhealthy diets are something that DO NOT belong in the power of the government. • Some were concerned that the plan was as a way of punishing those with preexisting conditions prior to the launch of Go365, such as Obesity, Diabetes, Asthma, and drug dependency.

15. LeBeau▪ThelenLLP ATTORNEYS AT LAW Public Employee Insurance Agency (PEIA) • In protest ALL 55 counties in West Virginia had 9 cancelled school days due to teachers on strike opposing the Go365 program. • The Governor and state legislators were initially unwilling to negotiate with the teachers, but after seeing all 55 counties on strike on the front steps of the capital building the decision was made to cancel Go365 and provide a pay raise to cover rising health insurance costs.

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17. LeBeau▪ThelenLLP ATTORNEYS AT LAW A day in the life of a wearable technology user: • Gentle buzz of your smartwatch wakes you at 5:30 a.m. • Synch to your smartphone to see how well you slept • Answer: POORLY • Now feel extra groggy – drink two cups of coffee • Your wearable tells you your heart rate has increased • Set 45 minutes on the elliptical—actually do 20—not feeling it • Get ready for work. Get in car. Traffic terrible. Stress level high. • No time for lunch; grab sandwich • Get home. Tired. Ready to crash. Cold beer and pizza delivery sounds best • Diet, lack of exercise, alcohol, high blood pressure take their toll • All recorded on your wearable

18. LeBeau▪ThelenLLP ATTORNEYS AT LAW Some Negatives: • It’s expensive (for employers and employees) • Technology can be distracting from the actual job at hand • Not all employees are willing to use the technology • Older employees may feel discriminated against for not being able to use and work with advancing technology. • Does the technology leave with the employee or stay exclusively at the workplace? • Where is the line drawn between the employer obtaining useful information from the employee and the right of privacy?

19. LeBeau▪ThelenLLP ATTORNEYS AT LAW Constitutional right of privacy • The Fourth Amendment to U.S. Constitution is generally more of a concern for public sector employers than private sector employers. However, 9th Circuit cases have held Fourth Amendment protections can be triggered when an employer conducts a search at the direction of law enforcement officers, or where anyone acting on behalf of employer asserts law enforcement-type authority ("acting under color of state law"). • When the Fourth Amendment applies, a search must be: (1) based on reasonable suspicion (i.e., reasonable grounds for suspecting that the search will turn up evidence of workplace misconduct); (2) based on legitimate business needs; and (3) limited in scope to that conduct necessary to achieve those needs. • The California constitution provides that "all people are by nature free and independent and have inalienable rights ... among these are ... happiness and privacy."

20. LeBeau▪ThelenLLP ATTORNEYS AT LAW PRIVACY RELATED POLICIES • Hill vs. NCAA

21. LeBeau▪ThelenLLP ATTORNEYS AT LAW EMPLOYEE’S PRIVACY BURDEN (Hill vs. ncaa) • To establish a prima facie claim for violation of California’s constitutional privacy right, a plaintiff must show: • Legally Protected Privacy Interest In Information Or Autonomy • Objectively Reasonable Expectation Of Privacy Under the Circumstances • Serious Invasion Of Privacy Interests

22. LeBeau▪ThelenLLP ATTORNEYS AT LAW EMPLOYER DEFENSES TO PRIVACY CLAIMS(Hill vs. ncaa) • In response to employee’s proof, the employer can prevail by showing: • Legitimate Interests • Interests Are Legally Authorized Or Socially Beneficial • Conduct “Reasonably Calculated” To Further Those Interests • Employer must clearly define right to search and monitor.

23. LeBeau▪ThelenLLP ATTORNEYS AT LAW Ada and feha concerns • The ADA prohibits employers from administering medical examinations and other disability–related inquiries to current employees unless the examination or inquiry is” job-related and consistent with business necessity”. The EEOC states that a medical examination “is any procedure or test that seeks information about an individual’s physical or mental impairments or health.” A disability related inquiry includes any question that is likely to elicit information about a disability. • At minimum employer must be prepared to explain what information is collected, the limits on collection and use, and why the technology is consistent with business necessity

24. LeBeau▪ThelenLLP ATTORNEYS AT LAW Ada and feha concerns • Reduced risk under ADA/FEHA: • Employee Wellness Programs – ADA allows employers to conduct medical examinations and inquiries as a part of a voluntary wellness program. • To be voluntary participation cannot be required (of course!), employee cannot be denied health care coverage for declining participation, cannot be subject to adverse action. • The EEOC rules regarding wellness programs published in 2017 allow that if the employer offers incentives of no more than 30% of the total cost for self-only coverage, the program would still be considered voluntary.

25. LeBeau▪ThelenLLP ATTORNEYS AT LAW Ada and feha concerns • If wearable technology is part of employee wellness program, must meet other wellness program requirements: • Notice regarding what medical information will be obtained • Reasonably designed to promote health or prevent disease • Make reasonable accommodations for employees with disabilities to participate • Information from wellness programs can only be disclosed in the aggregate (individuals cannot be disclosed) • Cannot require employees to agree to the sale of health information or to waive confidentiality • ADA risks with wearable technology use that is part of wellness program may be lower if information is sent to third party provider (not received or retained by employer)

26. LeBeau▪ThelenLLP ATTORNEYS AT LAW Ada and feha concerns • Risks still remain: • Even with a firewall of a third party provider, could employee claim “perceived disability”? • If the technology is used in connection with job performance, a discipline action could be claimed to be based on the employer’s discovery of medical information • Generally, an employee must request a reasonable accommodation for a disability. However, an accommodation may be necessary if the employer knew or had reason to know about a disability. Obtaining medical information from wearable technology could put employer is that situation

27. LeBeau▪ThelenLLP ATTORNEYS AT LAW Genetic Information nondiscrimination act (gina) • Prohibits discrimination based on genetic information • Genetic information includes information about genetic tests of employee and family members, the manifestation of disease or disorder in family members. • GINA makes it unlawful to “request, require, or purchase genetic information of an individual or family member of the individual” • Comparable risks as under the ADA • What do you do with the information recorded on wearable?

28. LeBeau▪ThelenLLP ATTORNEYS AT LAW Health insurance portability and accountability act (hipaa) • Prevents disclosure of Protected Health Information (PHI)—individually identifiable information held by “covered entities” and their “business associates” • HIPAA includes a Privacy Rule, a Security Rule and a Breach Notification Rule • A “covered entity” is a health plan, a healthcare clearinghouse and most health care providers • Does not include employers when acting in their capacity as employers • Applicability of HIPAA may turn on whether wellness program offered directly by employer or is part of a group health plan

29. LeBeau▪ThelenLLP ATTORNEYS AT LAW California confidentiality of medical information act (Cmia) • CMIA defines “medical information” to mean any individually identifiable information, in electronic or physical form, in possession of or derived from a provider of health care, health care service plan, pharmaceutical company, or contractor regarding a patient’s medical history, mental or physical condition, or treatment. • “Individually identifiable” means that the medical information includes or contains any element of personal identifying information sufficient to allow identification of the individual, such as the patient’s name, address, electronic mail address, telephone number, or social security number, or other information that reveals the individual’s identity. • CMIA prohibits a health care provider, health care service plan, or contractor from disclosing medical information regarding a patient, enrollee, or subscriber without first obtaining an authorization. • Similar protections as found in HIPAA.

30. LeBeau▪ThelenLLP ATTORNEYS AT LAW Lurking legal risks • Off-the-clock work • Monitoring e-mail • Remote access • Taking trade secret and other confidential information • Recording conversations • Capturing unsafe work conditions and practices • Distractions from wearable technology—at work and away from work • Injuries from wearable technology

31. LeBeau▪ThelenLLP ATTORNEYS AT LAW Monitoring use of company it systems • Balancing security and productivity concerns with legal and ethical responsibilities to employees • Effect on employee morale and possible increase in distrust of management—”Big Brother” • Important to have policy • Be aware of “off-the-clock” work if monitoring shows after hours work by non-exempt employees

32. LeBeau▪ThelenLLP ATTORNEYS AT LAW Monitoring use of company it systems • Software is available to monitor: • Keystrokes • Time and activities online • View computer screens in real time • Monitor unlimited number of networked computers • Track computer idle time • Social “net working” (aka “not working”) • Create log of every internet site visited • Flag designated words and content • Amount of time spent reading and/or composing e-mails

33. LeBeau▪ThelenLLP ATTORNEYS AT LAW Video surveillance • Generally acceptable in California on Company property, inside and outside • Employees have reasonable expectation of privacy in restrooms and locker-rooms • No audio recording without specific consent • Use of third-party could create issues

34. LeBeau▪ThelenLLP ATTORNEYS AT LAW Global positioning systems (GPS) California Penal Code Section 637.7 reads as follows: • (a) No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person. • (b) This section shall not apply when the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle. • (c) This section shall not apply to the lawful use of an electronic tracking device by a law enforcement agency. • (d) As used in this section, “electronic tracking device” means any device attached to a vehicle or other movable thing that reveals its location or movement by the transmission of electronic signals. • (e) A violation of this section is a misdemeanor.

35. LeBeau▪ThelenLLP ATTORNEYS AT LAW Global positioning systems (GPS) • Generally, use of GPS is acceptable • Low right of privacy vs. business interests in: • Protecting assets • Monitoring productivity • Compliance with traffic and employment laws • What about travel after hours? Geographic restrictions? Personal use allowed? • Wage and hour compliance—be careful what you wish for? • Off-the-clock work • Meal and rest period compliance • Best practice: Provide notice to employees

36. LeBeau▪ThelenLLP ATTORNEYS AT LAW Policies, handbooks and Agreements • Electronic Communications Policy • Social Media Policy • Bring Your Own Device (BYOD) Policy • Unlawful Harassment Policy • Confidentiality and Non-disclosure Policy • Written Information Security Program (WISP) • Right to Search • HIPAA Policy

37. LeBeau▪ThelenLLP ATTORNEYS AT LAW Electronic Communications policy • In addition to Constitution based privacy protections, must consider: • Electronic Communications Privacy Act of 1988, which amended the Federal Wiretap Act of 1968 • Imposes criminal and civil penalties for intentionally intercepting an electronic communication. Normally, monitoring e-mails and internet usage does not violate the ECPA because 1) monitoring not considered an “intercept” (because message already received) and 2) ECPA has an “ordinary course of business” exception for messages on the company’s system (but there are limitations). • Stored Communications Act • Prohibits intrusions on stored communications but includes an exception for employers who provide electronic communication services. Does not need to be in the “ordinary course of business”. • End result is that employers have fairly wide discretion to search, investigate and monitor electronic communications

38. LeBeau▪ThelenLLP ATTORNEYS AT LAW Electronic Communications policy • Inform: no expectation of privacy regarding company equipment, including computers and e-mail • Electronic communications must abide by unlawful harassment policy • Company equipment intended primarily for business use • No downloading of software without permission • Compliance with social media policy • Abide by non-disclosure and confidentiality policies

39. LeBeau▪ThelenLLP ATTORNEYS AT LAW Right to search policy • State clearly that employee has no expectation of privacy as to work area, computers, etc. • State clearly that Company may access work areas, lockers, desks, vehicles, personal belongings at work • E-mails may be reviewed • Internet usage may be reviewed

40. LeBeau▪ThelenLLP ATTORNEYS AT LAW Social media policy • Be authentic –identify who you are and make clear who you are speaking on behalf of • Abide by unlawful harassment policy • Do not disclose confidential or trade secret information • Distinguish between use of social media for business purposes versus personal use • Tell employees to use good judgement • Consider Section 7 of NLRA and “protected concerted activities”

41. QUESTIONS LeBeau▪ThelenLLP ATTORNEYS AT LAW