BadgeIt is not uncommon for employers to assign badges to their employees to grant access to certain locations on the employer’s property and parking garages. Many employees have them, use them, lose them and think little of them. But, badges made by Humanyze are so much more, raising concerns from privacy advocates and others. According to a New York Post article and earlier reports, these badges are designed to be worn by employees all day (and possibly night) and are capable of capturing a wide range of information about the employee, along with data from other systems of the employer. Through data mining and analytics, according to Humanyze’s chief executive Ben Waber:

you can actually get very detailed information on how people are communicating, how physiologically aroused people are, and can make predictions about how productive and happy they are at work

So, just what does this badge collect? According to the report and the company’s website, the badge is worn around the neck (kind of like name badges at association conferences) and captures sleep patterns, analyzes voice, monitors body language and fitness, tracks location, and the levels of communications with colleagues. This and other data is combined with the employee’s email and phone activity to produce insights into productivity levels and the employee’s emotions, including stress and coping levels. According to the article, the badge “can even detect if an employee is drunk.” However, Mr. Waber points out that conversations are not recorded, only the tone of the conversation, and that individuals use the badges only after giving their consent.

This super badge certainly is not the first or only product working its way to market that engages in this kind of monitoring. For example, we reported on Microsoft’s Hololens, the company’s “augmented reality help system,” which is equipped with a “plurality” of sensors that gather a range of biometrics parameters (heart rate, perspiration, etc.) along with other information to assist employees with certain tasks. There are others coming.

The badge, Hololens and other similar devices can be valuable tools for businesses to understand their workforces, increase productivity, improve safety, reduce human error and so on. However, beyond assessing whether the technology works, there are a range of legal and risk management issues employers need to consider when deciding to use these devices.

Privacy and data security considerations are among them as these devices collect a range of health-related data, as well as information relating to the employee’s emotions, locations and interactions with others. However, as we have noted in earlier posts, other questions that are raised, such as whether gathering of biometric and other medical data constitutes a disability-related inquiry under the Americans with Disabilities Act, is monitoring constantly going too far, does the company have to bargain with the union, how will this affect morale, what obligations are there to secure the data collected and who can have access to it. Employers should think through these and other issues carefully before introducing these kinds of tools and devices into the workplace.

Print:
EmailTweetLikeLinkedIn
Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.