In Spite of Adminstration Changes, Monitoring of the Workplace Continues to Create Legal Issues

In the last month of the Biden Administration, the EEOC issued a fact sheet on wearable technology under the anti-discrimination laws, “Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws.”  The fact sheet was devoted to monitoring devices in the workplace, including wearables such as smart watches, glasses or helmets that monitor employees, sensors, and GPS devices that track location.  The EEOC fact sheet suggested that the term “wearable” included “digital devices embedded with sensors and worn on the body that may keep track of bodily movements, collect biometric information, and/or track location.”  

The EEOC warns in the fact sheet that any wearable that collects information about an employee’s medical status could be volitive of the Americans With Disabilities Act (ADA).  The EEOC suggests such wearables could be classified as conducting medical exams or making disability-related inquiries, which are normally prohibited without a significant business need.  While not addressed in the fact sheet, other privacy-related issues arise concerning the use of video cameras and similar devices monitoring truck drivers.  Indeed, the area of employee privacy encompasses searching employee lockers and pocketbooks, etc.  

In some respects, the new administration is backing off some of the technology-related restrictions of the Biden Administration, particularly concerning AI.  Further, the National Labor Relations Board (NLRB) has also rescinded the prior administration’s memorandum addressing various technologies, including wearables and monitoring of the workplace.  

Nevertheless, there are many state common law principles that provide protection to privacy, including employee privacy.  There are statutory protections against eavesdropping and wiretap laws.  Issues have come up concerning some types of video surveillance, particularly in or around restrooms. 

The bottom line is that employer monitoring of the workplace raises legal issues, and some companies, such as Amazon for example, consider their monitoring practices to be essential to productivity gains.  Typical defenses to claims of privacy violations include notice to employees of the practices, and thus expressly or impliedly consent to the practices by remaining employed after such notice.  Readers may notice signs posted in various places, including many commercial establishments, that video cameras are being used.  This notice not only serves as a deterrent to wrongful activities, but also shows that the persons in the area have consented to such camera usage.  For similar reasons, employers in their written policies often furnish notice of their monitoring or search and seizure methods during investigations, which show that employees have consented to such procedures by remaining in employment.  

The main point here is to point out that these matters are controversial, not only legally, but also to employee senses of fair play.  Employers should know what data they are collecting, where and for how long it is stored, and the business reasons for its use.  Such actions are particularly desirable since various states have common-law doctrines granting employees certain privacy protections, and as many as 20 states regulate the tracking of individuals’ locations.  Illinois has a particularly tough law dealing with collecting biometric information, and there are related laws in Texas and Colorado.

This article is part of our August 2025 Newsletter. 

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