Privacy Concerns and Fitness Trackers in the Workplace

There has been an enormous increase in recent years in the amount of people utilizing “wearable technology.”1 Wearable technology can be described as devices that have the ability to “collect data [and] track activities.”2 Fitness trackers, including Fitbit3, Jawbone4, have all been part of this market increase.5

Employers have latched on to this increasing trend by encouraging,6 and sometimes mandating7 employees to wear these devices as part of a health and wellness program.8 Approximately ninety percent of companies offer wellness programs9, and about forty to fifty percent use fitness trackers as part of these programs.10 There are increased financial incentives for employers to encourage, or mandate, employees to wear these trackers.11 Similarly, there are incentives for employees to take part in health programs that utilize fitness trackers, because of reductions in the price of employee’s health care plans.12

There are concerns, however, due to the tracking component of these fitness devices. Fitbit, for example, enables constant tracking,13 which can be a benefit to employees, who wish to track their activity, food and exercise.14 However, there are also concerns for employee’s privacy and the data that these devices collect.15 Employers will have access to ample information about employees collected through these tracking devices.16

Moreover, there are additional concerns that employers could use the information gathered from the tracking devices to factor into employment decisions, including raises and promotions.17 There could be a new wave of litigation from less active, or disabled, employees if employers were to use this data in job performance reviews.18

Additionally, many of the companies that develop these fitness trackers, including Fitbit19 and Apple20, sell the data collected from these devices to employers and third-parties. There are additional concerns that these wearables can track employee’s locations, and may have audio and video recording features.21 Employers could potentially track employees, and their exact location, by “spying” on them in and out of the workplace.22 This has created an area in privacy laws where consumer information is unprotected.23

There are many benefits for employees to use wearable technology, including sleep, activity, and health and wellness management.24 Additionally, certain professions may be drastically improved by wearable technologies, such as the medical profession.25 However, there is not enough, or seemingly any, legislation to protect employees.26 Currently, the Health Insurance Portability and Accountability Act, the Americans with Disabilities Act Amendments Act, the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act, do not protect employees from this very specific form of health data collection.27

The only way to protect employees who wish to use these trackers while in their employment, is to create specific rules, laws, and guidelines for employers. This would enable regulation as to what employers can and cannot do with the information they collect. Further, employees should be made aware of what data is being collected from them and who is able to access it, opting either to allow or disallow their information from being collected.

  1. Adam D. Thierer, The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns without Derailing Innovation, 21 Rich. J.L. & Tech. 6 1, 18 (2015).
  2. Id. at 1.
  3. Id. at 18.
  4. and Apple Watches[note]Patience Haggin, As Wearables in Workplace Spread, So Do Legal Concerns, The Wall Street Journal (March 13, 2016), http://www.wsj.com/articles/as-wearables-in-workplace-spread-so-do-legal-concerns-1457921550?mod=ST1.
  5. Elizabeth A. Brown, The Fitbit Fault Line: Two Proposals to Protect Health and Fitness Data at Work, 16 Yale J. Health Pol’y L. & Ethics 1 5, 7 (2016).
  6. Id.
  7. Brown, supra note 3, at 14.
  8. Haggin, supra note 6.
  9. Timothy L. Fort, Anjanette H. Raymond & Scott J. Shackelford, The Angel on Your Shoulder: Prompting Employees to Do the Right Thing Through the Use of Wearables, 14 Nw. J. Tech. & Intell. Prop. 139 141, 153 (2016).
  10. Haggin, supra note 6.
  11. Brown, supra note 3, at 13.
  12. Brown, supra note 3, at 14-15.
  13. Brown, supra note 3, at 7-8.
  14. Brown, supra note 3, at 7.
  15. Id. at 6; see also Fort et al., supra note 10, at 145-6.
  16. Brown, supra note 2, at 9.
  17. Haggin, supra note 6.
  18. Haggin, supra note 6.
  19. Brown, supra note 2, at 17.
  20. Thierer, supra note 1, at 21.
  21. Haggin, supra note 6.
  22. Haggin, supra note 6.
  23. See Brown, supra note 2, at 22-23.
  24. Brown, supra note 2, at 7.
  25. Thierer, supra note 1, at 28.
  26. Brown, supra note 2, at 24.
  27. Brown, supra note 2, at 24-32.

Author: Molly Sweeney

Molly graduated from Bryant University in 2013 with a degree in Sociology. Prior to law school, she worked at a marketing firm for two years. This summer Molly interned at Bergen County Superior Court in the Family Division. In her free time, Molly enjoys traveling and reading.