Staying on the right side of the fine line

Employers who use technology to evaluate service and productivity levels are walking a fine line between their rights and their employees’ privacy.

A recent ABA CLE program, "The Fine Line: Employer Technology and the Impact on Employee Privacy," which was sponsored by the Section of Labor and Employment Law, considered the rights of employers and employees with respect to these new technologies. 

Moderated by William A. Herbert, deputy chair and counsel of the New York State Public Employment Relations Board, the program looked at three of the latest technologies used to measure productivity as well as the advantages and disadvantages of each.

Serving as panelists were David N. Hoffman, general counsel and vice president of Ethics & Compliance, Wyckoff Heights Medical Center, Brooklyn, N.Y.; Lewis Maltby, president of the National Workrights Institute; Norma G. Meacham, partner at Whiteman. Osterman & Hanna; and Rachel Minter, the Law Office of Rachel J. Minter.

The panel discussed three technologies:

• RFID technology involves a radio signal sent from a badge or tag to a strategically placed receiver.
• Biometrics is the use of physical measurements to identify or authenticate a person.  Fingerprints, hand geometry, iris or retinal scans, and facial recognition are all types of biometrics.  Essentially biometrics performs as glorified time sheets.
• GPS or global positioning systems use satellite links to track positions of personnel and equipment.

The RFID case discussed involved arbitration between the Wyckoff Height Medical Center and the New York State Nurses Association resulting from a new policy requiring nurses to wear RFID devices clipped to their nametags. The hospital used the tags to measure response time for patient calls.  The hospital could also monitor where nurses were on the floor at any one time. 

During arbitration, it was noted that the only time the hospital used data from the RFID system was to defend a nurse from a complaint by a patient that the nurse’s response time was too slow.   As a result of the arbitration the nurses and the hospital together developed standards on how and when the hospital could use data collected.

The biometrics case involved introduction of a type of hand scan at the beginning and end of each shift for architects, engineers and construction supervisors for the City of New York.  According to Minter, the city said there was no need to bring the issue of using the hand-scan technology to the bargaining table as it simply replaced the traditional time clock, making the sign in process more exact.  She reported that employees said they felt demeaned and experienced a reduced sense of self worth.  One, she pointed out, said, “The city trusts me to supervise a $10 million project, but not to find my time sheet.”  The union said there were ways to implement electronic time sheets without scanning a hand.

The major concerns that employees expressed involved privacy and identity theft issues because of the ability of outside hackers to appropriate information stored in the system.

Privacy concerns resulted in the threatened taxi strike in New York City earlier this month when the city proposed installing GPS devices to track where each is at any given time and where each has traveled. 

Transportation companies have used GPS to track vehicles, establishing that drivers are where they said they were and that drivers have taken the most direct route.

State and federal courts continue to hear cases involving individual privacy rights versus an employer’s right for information.  Although current thinking is that employees can only expect privacy on their own time and in their own homes, courts are continuing to define where the fine line exists between employee’s and employer’s rights.

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