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Worker Privacy and Security in an Internet of Things

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.

© 2020 Foley & Lardner LLPNational Law Review, Volume VI, Number 277



About this Author

Connor Sabatino, Foley Lardner Lawyer, Bench Trial Attorney
Senior Counsel

Connor Sabatino is an associate and litigation attorney with Foley & Lardner LLP. Mr. Sabatino has been the lead litigator in bench trials before federal courts in both Wisconsin and Colorado, and worked on jury trials in large, complex patent litigation matters. He focuses his business litigation practice on: distribution and franchise law; patent litigation, including an emphasis on technology and security in our increasingly connected world; and, collections law, with a particular emphasis on Wisconsin collections, garnishments, executions and other matters...