Technology will continue to alter how Americans work in coming decades. One aspect of these changes may be a rebalancing of privacy and other legal rights in the workplace. As an employment law attorney, it is challenging to keep pace with new technology using old laws.
A recent American Bar Association symposium in Washington, D.C., on technology and employment law offered a glimpse of the future that is both exciting and terrifying for employees, employers and employment law attorneys. Here are some of the highlights:
1. Big data may mean big problems.
Companies are intensely looking at ways to use big data to help make hiring and other human resources decisions. Employers want to use data to hire applicants who, for example, will be more likely to stay with the company long term in order to reduce costs of turnover. Here is where employment law comes into play. You might think that an algorithm does not discriminate, but if there is a correlation between applicants from ZIP codes closer to company headquarters and employee retention, and those neighborhoods are demographically skewed white, the computer may recommend hiring fewer people of color, which results in a disparate impact, which is against the law, regardless of intent. One commentator noted that big data may also be used to screen for factors that might mean an applicant is more likely to try to organize a union (e.g., wage history) even though the applicant has never actually been engaged in organizing activity. This is known as the "Minority Report" effect, after the movie starring Tom Cruise.
2. Employers want to track your every move.
A recent lawsuit in California involved an employee who was asked to install an app on her company smartphone that would allow her boss to track its location 24 hours a day, seven days a week. After the boss bragged that he could see that she had been speeding, the employee uninstalled the app and was fired. She sued for invasion of privacy and the suit was resolved confidentially.
New products and technologies for tracking employees are proliferating. Truck drivers in Australia actually have their brain waves scanned to see if they are fatigued and dangerous on the road. Some employees in Europe willingly have chips implanted in their skin that allow them access to company facilities. In the U.S., at least five states have passed prohibitions on employers requiring employees to have a microchip implanted in their body. Employee-sponsored wellness plans that might allow access to data from Fitbits or even DNA information are raising red flags among lawyers.
One product, called Humanyze, is a "sociometric badge" worn by employees that includes a microphone, infrared sensors, accelerometers, and Bluetooth to measure movements, face-to-face encounters, speech patterns, and vocal intonations to track which employees are talking to other employees, how long, and where. Employers in Silicon Valley, obsessed with creating the perfect team and office environment, think these products can help determine everything from office layout to project assignments and help boost creativity and productivity.
Surprisingly, breach-of-privacy lawsuits by employees haven't reached tsunami proportions, at least yet, as employers seek to require various types of tracking devices. Some commentators mused that millennial employees are more accepting of monitoring while older generations are not.
3. The "gig economy" is still in flux.
The test for determining whether someone is properly characterized as an employee or independent contractor has not changed in recent years, but the consequences have. The penalty on the employer for mischaracterization used to be back pay and benefits for affected employees. Now, the viability of entire companies like Uber and Lyft based on smartphone apps depends on this legal characterization. Lyft's class-action settlement was recently rejected by a federal judge, but Uber has apparently reached a deal with its drivers that will allow it to continue treating its drivers as contractors, not employees.
4. "Gamification" is a trend in hiring.
More and more companies these days are using special computer games to both attract and weed out candidates to "optimize" hiring employees who will be successful and engaged. The employers and the vendors who create the "games" claim these are not tests, per se, but methods of evaluating how an applicant interacts to certain situations. The "games" may soon be played out using virtual reality headsets. Legal critics point to concerns about discrimination based on disability, access to technology, and age, among other protected classes.
V. John Ella is a partner at the law firm of Trepanier MacGillis Battina.
