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.

Twitter Harassment and the Limits of Employment Law

It is an interesting almost-paradox that in 2016, the Internet is an open, seemingly boundless space where young people often learn about the limits of the real world. Crises within Internet communities have an unfortunate tendency to spill out into the real world, and what may seem like good fun online suddenly has material effects on real lives. Consider a social media outlet like Twitter, where unbridled discourse sometimes runs into the reality of at-will employment:

Politics on Twitter can be bewildering to the uninitiated. There’s “Traditional Conservative Twitter,” “Alt-Right Twitter,” “Gamergate Twitter,” “Liberal Pundit Twitter,” “Liberal Think Tank Twitter,” “Left Twitter,” “Communist Twitter,” “Woke Twitter,” and many more, all consisting of people tweeting and retweeting each other as they build a sense of online community while typically spending just as much time tweeting and retweeting other “Twitters” so at to chastise and make fun of them.

Indeed, Twitter is perhaps most interesting when groups collide. Users often spend entire afternoons in the online equivalent of a ‘shouting match’ with other users. Each user’s followers will pick up digital arms and fight on behalf of their preferred side. A great deal of mental energy and frustration is expended, and a user’s day typically ends with some hurt feelings and the satisfaction of having written a few clever zingers. But, there is a darker side. The line between a ‘shouting match’ and harassment is often blurred. While the two main individuals arguing may be careful not to cross any lines, their followers are often not so careful. Women are on the receiving end of the majority of these attacks.1 The idea that many attacks are not justified is an understatement. However, there’s another facet to this: what some may perceive as harassment may be valid criticisms that they do not understand. It becomes even harder to parse when these valid criticisms come alongside a tidal wave of unjustified attacks.

So, what are people who are victimized on Twitter supposed to do beyond reporting the offending user to Twitter, Inc.? If they’re lucky, their harasser is not posting anonymously and they can make the harassment public in an attempt to shame the offender. Sometimes this works, and results in repercussions such as that person losing their job. Many find it easy to cheer when sexist Toronto firefighters are punished for their online behavior, especially by a department that wants to encourage more females to join.2 However, it is not always easy to know what is fair.

Consider the case of Matt Bruenig, who was once a major personality in “Left Twitter.” Best known for his data-driven anti-poverty writing for the left-liberal think tank Demos, Bruenig had an abrasive Twitter personality. After calling Neera Tanden, head of the liberal think tank Center for American Process, a “scumbag” for her role in the 1996 welfare reform bill, the resulting kerfuffle was large enough that Demos fired Bruenig.3 To the outside observer, it is not clear whether this was a case of a small blogger being beaten down by an influential political figure, or the comeuppance of a Twitter personality whose bread and butter was demeaning people online. What is clear, however, is that regardless of the morals, ethics, and reality of whatever happened, Demos had the right to fire Bruenig; who was of no recourse in this situation. As the Supreme Court of California has explained:

“[A]n employer may terminate its employees at will, for any or no reason . . . the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment . . . The mere existence of an employment relationship affords no expectation, protectable by law, that employment will continue, or will end only on certain conditions, unless the parties have actually adopted such terms.”4

And that is the reality in which naïve Twitter users learn about the real world every time online fights are taken seriously.

Social Media & Employment Law: Not Just a Matter of Free Speech

Law has generally been thought of as moving slower than technology.[1] As social media use grows, this thought could not be more true.[2] Social media has played a large role in the termination of employees across the world in recent years, for reasons such as violating company policy, divulging privileged information, or complaining about the workplace.[3] While most people immediately associate policies restricting social media use with infringements on First Amendment rights, such policies also raise questions under the National Labor Relations Act (NLRA).[4]

With NLRA questions growing, the National Labor Relations Board (NLRB) issued a series of reports “presenting case developments rising in the context of today’s social media.”[5] The NLRB reviewed a number of social media policies and found that certain provisions of most policies violated Section 7 rights, which allow employees to self-organize, collectively bargain, or perform any similar activities.[6] Section 7 rights are interpreted very broadly by the NLRB, making it necessary for employers to narrowly tailor any policies that may have an effect on those rights.[7]

The first policy the NLRB reviewed simply stated “[d]on’t release confidential guest, team member, or company information.”[8] On its face, this policy seems perfectly reasonable, yet the NLRB found it unlawful.[9] The Board found that the policy “would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment or employees other than themselves–activities that are clearly protected by Section 7.”[10] Because of the broad construction of Section 7 rights, the NLRB has routinely found that policies that could be “reasonably interpreted” as to prohibit employees from discussing such confidential information as wages and working conditions are unlawful as they prohibit discussions of important elements of collective bargaining and self-organization.[11]

There was one policy reviewed by the NLRB that was found to be completely lawful.[12] This policy provided specific details and examples on prohibited actions such as “offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of . . . [any] status protected by law or company policy,” failure to correct factual mistakes in social media postings, disclosure of trade secrets, violations of federal disclosure laws, and unauthorized representation of the employer.[13]

Through its review, the Board made one questionable decision. A policy stating that the employer “encourages employees and other contingent resources to consider using available internal resources, rather than social media or other online forums, to resolve these types of concerns.”[14] The Board stated that this policy is unlawful because employees have a “protected activity of seeking redress through alternative forums.”[15] The decision is questionable, however, because the policy in question only “encouraged” employees to use certain grievance routes.[16] There was no final policy–no singular means of seeking redress–provided in the policy. Of course, an encouragement from an employer can be taken by some employees as a mandate, as acknowledged by the Board when it suggests the policy could “inhibit” alternative redress.[17]

It seems unlikely that this is the last any of us hear about social media policies violating employment law. The NLRB report issued in May 2012 was the third such report in less than one year. As social media continues to grow and become more prevalent in the workplace, expect more tension and more policy revisions.

[1] Lyria Bennett Moses, Understanding Legal Response to Technological Change: The Example of In Vitro Fertilization, 6 Minn. J.L. Sci. & Tech. 505, 515 (2005).

[2] See Lafe E. Solomon, NLRB, Report of the General Counsel at 2 (May 2012) (attached to Memorandum from Anne Purcell, Associate General Counsel, NLRB, to all regional directors, officers-in-charge, and resident officers, NLRB (May 30, 2012) (on file with author)).

[3] See Tiffany Hsu, When social media gets your fired: Francesca’s CFO is out, L.A. Times, May 14, 2012, http://,0,2912412.story; Kerry M. Lavalle, Why every employer should adopt a social media policy, Chi. Daily Herald, April 16, 2012 at 42.

[4] See Lavelle, supra, note 3.

[5] Supra, note 2 at 2.

[6] 29 U.S.C. § 157 (2012)

[7] See University Medical Center, 335 N.L.R.B. 1318, 1320-22 (2003), enforcement denied 335 F.3d 1079 )D.C. Cir. 2003) (holding that ambiguous rules with no limiting language or context are unlawful).

[8] Lafe, supra, note 2 at 4.

[9] See id.

[10] Id.

[11] See id. See also Cintras Corp., 344 N.L.R.B. 943, 943 (2005), enforced 482 F.3d 463 (D.C. Cir. 2007).

[12] See 19-20.

[13] Lafe, supra, note 2 at 23.

[14] Lafe, supra, note 2 at 11.

[15] Id.

[16] See id.

[17] See id.