On December 19, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued its new fact sheet, “Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws,” which provides “pointers” to employers that utilize wearable technologies in their workforce. The fact sheet demonstrates the growing concern from regulators and legislators about intrusive technologies in the workplace. This concern has resulted in a memorandum on surveillance from the current general counsel of the National Labor Relations Board (NLRB), guidance on artificial intelligence (AI) in the workplace from multiple federal agencies, and an array of state legislation on location tracking, biometric data, and other forms of surveillance.¹

In this case, the EEOC cabined the fact sheet to “wearables,” such as smart watches, glasses, or helmets that monitor employees in the workplace, sensors that warn the wearer of a hazard nearby, and GPS devices that track location(s). The EEOC did not explicitly define “wearable,” instead referring to “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 fact sheet divided risks arising from wearables into three categories: collecting information from wearables; using information from wearables; and reasonable accommodations for wearables.

Regarding collecting information from wearables, the EEOC warned that any wearable that collects information about an employee’s medical status (such as blood pressure monitors) may run afoul of the Americans with Disabilities Act (ADA). The EEOC opined that these wearables could be classified as conducting “medical examinations” or making “disability-related inquiries.” Under the ADA, medical examinations and disability-related inquiries are permitted only if related to the specific job of the employee, and the exam/inquiry is consistent with a business necessity. Therefore, according to the EEOC’s new fact sheet, employers that mandate all employees wear a company-issued wearable that collects information such as vital signs without a business need could be liable for violating the ADA. Relatedly, if the information collected by the wearable includes medical information, employers should be careful to store that information separately from employees’ personnel files.

The EEOC also warned of the risks of improperly using information from wearables. In particular, employers taking adverse actions against employees based on information from wearables may violate EEO laws, such as Title VII of the Civil Rights Act of 1964 (Title VII) or the Genetic Information Nondiscrimination Act (GINA). For instance, an employer might use a wearable technology that inaccurately collects data about the productivity of those with darker pigmented skin. An employer may violate Title VII if it terminates these employees or takes other adverse actions against them based on the inaccurate productivity data.

Importantly, the EEOC cautioned that even if the wearable technology complies with the ADA and other EEO laws, employers must still ensure that they comply with the ADA insofar as certain employees may need accommodations for religion, pregnancy, or disability.

Many of the points in the EEOC’s fact sheet mirror concerns expressed in opinions and guidance from other regulators. For example, in October 2022, NLRB General Counsel Jennifer Abruzzo released a memorandum addressing various technologies, such as wearables, keyloggers, and software that takes screenshots, webcam photos, or audio recordings. While those technologies may be used to track and manage employees’ productivity, the general counsel noted that “employers could use these technologies to interfere with the exercise of Section 7 rights under the National Labor Relations Act by significantly impairing or negating employees’ ability to engage in protected activity—and to keep that activity confidential from their employer.”

Another concern arises when the wearable technology includes AI or similar software. The EEOC, in a joint announcement with the U.S. Department of Justice, previously warned of “issues of technological equity, inclusion and accessibility” as AI is implemented in employment settings. During the COVID-19 pandemic, the EEOC launched its AI Initiative out of concern that AI tools may put certain employees at a disadvantage, including disabled employees. Indeed, the EEOC’s first AI guidance document focused on disability discrimination. Since then, the federal government has taken a “whole of government” approach to new technology, AI, and employment laws and regulations. However, the EEOC has failed to issue any AI guidance in over a year and a half.

Outside the federal government, the last decade has seen a steady drumbeat of new state laws to regulate employee-monitoring technologies. Illinois and Texas have long had statutes that regulate the collection and handling of biometric information by private companies. In the past year, Colorado enacted a statute requiring employee consent and other steps before employers can collect biometric information from employees.² Moreover, many states have passed laws requiring security safeguards and data breach notifications for biometric data.

On location tracking, Hawaii and New Jersey recently passed statutes requiring, respectively, consent and notice for certain types of workforce location-tracking.³ This new legislation adds to the statutes in almost 20 states regulating location tracking. In even more targeted legislation, several states have prohibited employers from requiring employees to implant microchips.⁴

A separate trend takes aim at surveillance more broadly. For example, New York has now joined Connecticut and Delaware in requiring written notice for many forms of workplace surveillance.⁵ California has proposed regulations that would require detailed risk assessments, notice, and data rights for certain types of employee monitoring.⁶

This new legislation layers over the existing common-law protections for privacy, as well as statutory protections against eavesdropping (typically called “wiretap” laws) and video-surveillance in private areas, such as restrooms. Employers should bear in mind that wearables may collect information not only about the individual wearing the device, but also about others in the vicinity. For example, smart glasses that record what the employee sees and hears could violate wiretap laws and inadvertently capture images of other employees changing or in restrooms.

Finally, surveillance protections in other countries may be much stricter than in the United States. Most countries have comprehensive data protection laws that require notice for all forms of personal data collection, grant rights to individuals to obtain the personal data collected about them, and impose detailed requirements related to data retention, security, and cross-border data transfers. Moreover, in the EU as well as some other countries, intrusive continuous surveillance of employees typically violates data protection laws.

As a result of the rapidly evolving legal framework, before employers adopt wearables in the workplace, they should consult with experienced employment counsel. Depending on the technology and jurisdiction, employers should consider proactive steps including:

• Assessing the type of information collected by the wearable technology and the accuracy and validity of that data;
• Vetting providers of wearables and ensuring vendor contracts contain provisions protecting employee data;
• Crafting policies and standard procedures for using data from wearables in compliance with the EEO and other laws;
• Reviewing manufacturer updates to wearables for changes in the collection, use, and disclosure of data; and
• Monitoring changes in laws in the jurisdictions where employees use the wearable technology.