Creepy. Big Brother. That is how many people react to the thought of an employer requiring an employee to wear smart workplace technology capable of biometric data collection. Say what? Think of a next gen fitness tracker that collects physical information about employees. These employee biosensors collect data such as heart rate, eye movements, temperature, location, and electrical activity of the brain, whether it is related to job performance or not. Those are the printable remarks.

In truth, this kind of employee monitoring has been around for years, especially in industrial settings. The National Labor Relations Board raised an alarm in 2022 in its GC Memo 23-02. The fear was that biometric data collection could be used to thwart union organizing. Texas has had a law in effect since 2017 to protect consumers from invasive data collection, but does it apply to the workplace? Can employers require wearable devices?

Workplace Wearable Technology Laws

In December 2024, the EEOC issued new guidance to employers about what data an employer may lawfully collect. The central caution of this guidance called “Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws” is that the collected data must be job related and consistent with business necessity. The second most important idea is that the information collected about employees must be securely maintained. Finally, employee consent alone does not justify the collection and use of the data.

Workplace Monitoring Claims – Kilgore & Kilgore Employment Lawyers Provide Guidance on Legal Interpretations

If nothing else, the growth of big tech has taught us that data is king. Big data, especially. As the law has developed, our employment lawyers have been helping workers protect themselves against workplace surveillance and employee monitoring. For information about our employment law practice, click Employment Lawyers. Or call us at (214) 969-9099. You can also reach out to us online. Just click this link Contact Kilgore Law to get the conversation started.

Workplace Wearable Technology Laws: Worker Surveillance and Smart Workplace Technology

The new EEOC fact sheet does not define “workplace wearable technology” or “wearables.” Instead, it refers to digital monitoring devices embedded with sensors and worn on the body that may keep track of bodily movements, biometric data collection, and/or track location.

These might include smart watches or smart rings that track workers’ activities and monitor their physical and mental condition in the workplace, or other devices such as:

• Environmental or proximity sensors that warn wearers of nearby hazards;
• Smart glasses and smart helmets that can measure electrical activity of the brain (electroencephalogram (EEG) testing);
• Emotion detectors;
• Exoskeletons and other aids that provide physical support and reduce fatigue;
• Global Positioning System (GPS) devices that track location; and
• Various other devices.

Workplace Wearable Monitoring and Workplace Wearable Technology

In 2022, about 21 percent of Americans chose to use wearable devices to track health and fitness goals. These are even more popular now. But when employers require workers to wear biometric monitoring devices, the situation is different. These devices are required by some sectors such as:

• Manufacturing, construction, and healthcare employers, to monitor safety, fatigue, and/or exposure to hazardous conditions;
• Retail and service industries, to track productivity, health metrics, or stress levels to optimize workplace performance;
• Corporate sectors, which may use workplace productivity tools, employee health monitoring, employee stress monitoring, and workplace safety tracking, to improve performance;
• Tech and innovation companies to maximize workplace integration; and
• Fitness and health-focused employers to track activity levels, sleep, or overall health to promote of wellness programs.

Here is where issues arise regarding workplace privacy rights, workplace discrimination, and employee consent requirements. An employer may run afoul of nondiscrimination laws if, for example:

• When health information is used to infer an employee is pregnant and then fires her or puts her on unpaid leave unprompted;
• When data from wearable technology produces less accurate results for people with darker skin, it leads to adverse employment decisions against those workers because of that data;
• When an employee goes on a break to take a loved one to a health center and receives an inquiry about the purpose of the visit, which could elicit genetic information in violation of the Genetic Information Nondiscrimination Act; or
• When employees of a specific race or ethnicity are required to use wearables to collect health information while other employees are not.

Workplace Surveillance – EEOC Guidance Wearables – Biometric Data Collection

The EEOC warns that any wearable that collects information about an employee’s medical status (such as blood pressure monitors) may run afoul of the Americans with Disabilities Act (ADA). The EEOC has noted that requiring these wearables could be classified as conducting “medical examinations” or making “disability-related inquiries.” Under the ADA, medical examinations and disability-related inquiries are permitted only if related to the specific job of the employee, and the exam/inquiry is consistent with a business necessity.

When an employer terminates an employee or takes another adverse action against him or her based on inaccurate productivity data, it may be a violation of Title VII of the Civil Rights Act of 1964.

Further, workers must be fully informed about what data is collected, how it will be used, and who will have access. Unless an employee’s consent is demonstrably fully informed and voluntary, it may not permit biometric data collection.

Under the ADA, employers must securely store and treat health and disability-related information confidentially. Employers must also offer accommodations under the ADA and Title VII, such as alternative monitoring methods for employees who cannot or do not want to use wearables due to religious beliefs, disabilities, or pregnancy-related conditions.

Kilgore & Kilgore Employment Lawyers May Be Able to Help You with Workplace Wearable Monitoring Technology Discrimination Claims

The new EEOC guidance imposes significant new restrictions on employers. If you believe that your employer is collecting or has used biometric information against you in a way that is forbidden by law, reach out to us. Click Kilgore Law to contact us.