2016 or 1984?

by Stefanie M. Renaud

Imagine a piece of technology, so small it could be mistaken for a credit card, that tracks every movement an employee makes, analyzes every conversation that employee has, and could tell an employer when that employee was in need of a day off.  What if that technology could identify patterns and traits that you could use to increase productivity by 23 percent?  Would employers want to use this technology?  Of course!  But what about the employees?  Isn’t using technology like this an invasion of their privacy?  We were shocked to learn, and we bet you are too, that because of the way this technology is currently being used, employers actually can monitor every word and movement an employee makes without running afoul of the law.

Boston-based company Humanyze recently made headlines when it announced the success it has had analyzing data collected by employee ID badges, developed at the Massachusetts Institute of Technology, that track employees’ movements and analyze their voices during conversations.  Contained within each badge are Bluetooth, radio frequency identification (“RFID”), and infrared technologies, as well as two microphones.

Each of these particular technologies has a different function and gives Humanyze different information that it can use to identify trends or patterns.  Bluetooth and RFID technology are used to monitor the employee’s physical movements and location within the office.  The microphones allow Humanyze to conduct real time analysis of the speaker’s voice, including the frequency of speaking and interrupting, and how the tone and pitch of the voice change, which can be indicator of stress, although the badge does not record the content of the employee’s conversations.  Finally, infrared technology monitors the wearer’s physiology for signs of stress.  Humanyze analyzes all of the collected data and identifies patterns or trends common to a specified group, such as top performers.  Humanyze then works with companies to explore these trends and use them to the business’ advantage.  For example, Humanyze helped Bank of America save millions of dollars by suggesting that they restructure employee breaks, which increased social interaction between employees and led to a 23% increase in employee productivity.

So, given how invasive this level of employee monitoring is, how could it not be an invasion of privacy?  First of all, this isn’t an invasion of privacy because Humanyze only gathers data from employees who voluntarily offer to be tracked.  Second, the individual’s data is their own; employers cannot see individual data and only receive information about aggregate data trends.  In Massachusetts, employees are protected by statute, Massachusetts Gen. L. Ch. 214, s. 1B, from “unreasonable, substantial, or serious interference” with their privacy.  However, in order to prove an invasion of privacy claim, the employee must show that the employer gathered and then disclosed information “of a highly personal or intimate nature.”  While it is arguable that the data collected by these badges could be deemed highly personal in nature, in this case it’s Humanyze, and not the employee’s employer, who collects and analyzes the information.

For this same reason, Massachusetts employers do not need to worry about personnel records law violations, because the employer is neither creating the records nor is it the owner of the data. And, because the badges do not record audio, there is no concern about violating the Massachusetts wiretapping statute.  So are there any legal hurdles stopping an employer from implementing this type of employee monitoring?  Only one: a workforce governed by a collective bargaining agreement.  Employers with unionized workplaces will almost certainly need to bargain with the union before implementing a new employee tracking system.  Indeed, in another, related circumstance, the Boston Police Department engaged in negotiations with the union representing its police officers over whether or not the officers would be required to wear body cameras, ultimately agreeing with the union that, at least initially, the Department would ask for volunteers.  When no one volunteered, the BPD was allowed to assign the cameras to police officers, but that was after months of negotiations and subsequent litigation.  So, if you have a unionized workforce, you can expect 1) union negotiations and 2) substantial pushback on any requirement that members of the collective bargaining unit wear these badges.

Employers in or with locations outside of Massachusetts that are inclined to experiment with this new employee tracking system should check with labor and employment counsel in those jurisdictions, because state privacy laws can vary widely.  Meanwhile, we’ll keep an eye on this new technology and let you know if there are any new developments.

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