Posted in Employee Privacy, Privacy Litigation
Wearable
device data may be the next big thing in the world of evidence for employment
cases since social media. Given that it has already been used in personal
injury and criminal cases, it is only a matter of time before wearable device
data is proffered as evidence in an employment case.
From
Fitbit to the Nike FuelBand to a slew of others, the worldwide wearable market
has exploded in recent years. In a world increasingly obsessed with health and
fitness, wearable devices offer instantaneous and up-to-the-minute data on a
number of metrics that allow the user to assess his or her own health and
fitness. Wearable devices can track information like heart rate, calories,
general level of physical activity, steps taken, diet, blood glucose levels and
even sleep patterns. Given the nature of the information captured, it is easy
to see how wearable device data may be relevant to claims of disability
discrimination, workers’ compensation and even harassment.
Evidence of What?
Wearable
device data has been used in at least two nonemployment cases to date. In 2014,
a personal trainer in Calgary, Canada, used wearable device data in her
personal injury case to demonstrate the extent of her injuries. She wore a
Fitbit during an “assessment period” to show that, as a result of her injuries,
she maintained activity levels under a baseline for someone of her age and
profession.
And in
2015, police in Lancaster, Pennsylvania used Fitbit data to support criminal
charges against a woman who they asserted had made a false report to law
enforcement that resulted in a manhunt for her alleged assailant. The woman had
claimed that a man had broken into the house in which she was staying while she
was asleep, pulled her out of bed and sexually assaulted her. But her Fitbit
told a different story. It revealed that she had been awake and walking around
at the time she claimed to have been attacked while sleeping. The Fitbit data,
along with other evidence, led investigators to conclude that the woman was
lying and charges were brought against her.
You Are What You
Wear
In the
employment litigation context, wearable device data could help a factfinder
determine whether a plaintiff is “disabled,” has a “serious medical condition”
or suffered a workplace injury. Data such as heart rate, physical activity
level, number of steps taken, and sleep patterns could all be probative of an
individual’s physical and mental state. Employers facing disability
discrimination claims could use wearable device data much like they would use
medical records and social media postings — to investigate and, if appropriate,
discount a plaintiff’s claim that his or her “major life activities” like
walking or sleeping have been substantially limited.
In
harassment cases, wearable device data could show whether a plaintiff’s heart
rate went up when the claimed harassment occurred. It could also provide
probative evidence of whether harassment was severe and pervasive during the
relevant time period. Wearable device data could also help prove or disprove
any claimed emotional distress damages. For example, wearable device data could
help demonstrate sleep loss or even an increased heart rate as probative
evidence of anxiety.
To Admit or Not to
Admit
Despite
its obvious probative value, the admissibility of wearable device data as
evidence in employment litigation is not a foregone conclusion. Wearable
devices come with inherent reliability issues. For instance, devices that count
steps based solely on arm movements may erroneously count fidgeting while lying
in bed as steps taken. In 2015, a California man filed a class action suit
against Fitbit, alleging that the company’s sleep tracking is inaccurate and
constitutes false advertising. Additionally, a user may forget to wear the
device or neglect to change the battery. And there is always the possibility of
data manipulation whether by jostling to create false readings or having
someone else wear the device.
But
that is not to say that wearable device data should not be admissible. Courts
and legal practitioners alike regularly work with flawed forms of evidence.
They know all too well that eye witnesses have faulty memories, that experts in
the same field may reach vastly different conclusions based on identical data,
and that witnesses may possess their own innate biases that color their
testimony. Yet, this does not stop such evidence from being admissible.
Similarly,
the aforementioned reliability issues will not stop wearable device data from
making its way into courtrooms across the Unites States. Theoretically, permitting
such information may even remove potential biases from the human lens and offer
some objectivity. In addition, a court could find wearable device data
admissible and then determine what weight to give it based on the quality of
the data provided.
Objection! Privacy
… Right?
The
information gathered by an individual’s wearable devices is inherently
personal. Wearable device data can be obtained from either the wearable device
manufacturer or directly from the individual’s device. From a privacy perspective,
the threshold issues are whether or not the user has a reasonable expectation
of privacy in the wearable device data, and if so, whether or not the user has
consented to or authorized the disclosure of the data.
In
terms of statutory protections, at first blush, heart rates and glucose levels
seem like information that would be considered “protected health information”
in the normal sense of the term. However, the Health Insurance Portability and
Accountability Act covers only certain information maintained by certain
medical entities, and it does not protect data stored on an individual’s
wearable device.
Even
if medical privacy laws did cover wearable device data, it would likely fall
under an exception to HIPAA for certain legal requests. A number of wearable
device companies have privacy policies that explicitly state that data may be
released in the event of litigation. For example, Fitbit’s privacy policy
states that it will release data “reasonably necessary to comply with a law,
regulation [or] valid legal process[.]” And Jawbone’s policy similarly states
that it “may disclose your personal information to … comply with relevant laws,
regulatory requirements and to respond to lawful requests, court orders and
legal process[.]”
Under
common law, given the personal nature of the information on a wearable device,
an individual could interpose an objection based on invasion of privacy to the
disclosure of data from his or her wearable device. The best way to avoid such
a claim is to obtain the individual’s consent or assert that there is no
expectation of privacy with respect to the data on the device. In the
Lancaster, Pennsylvania criminal case, the police claimed that the alleged
victim of the sexual assault had consented to their review of the data from her
Fitbit.
In the Calgary case involving the personal trainer, she put the
information on the device at issue herself and offered it into evidence to
support her case. In an employment case, defense counsel could argue that, by
bringing the claim regarding a workplace injury or a disability or requesting
emotional distress damages, the plaintiff is putting the information on the
wearable device at issue.
Strategies for Use
of Wearable Device Data In Employment Cases
·
Take
the time to learn about the various types of wearable devices and how they
work. Some may count moving your arms around as walking (which is a great
morale booster, at best). Others will not register cycling as activity.
Know
what you are working with so you can determine whether the information is
relevant and helpful to your case.
·
Just
as you would include requests for social media information in your discovery
requests, include requests for wearable device data.
·
Be
prepared to address objections based on privacy interests and determine how you
will show consent or authorization for the disclosure.
·
Consider
engaging a qualified expert who can reliably explain and interpret the wearable
device data.
·
Get to
know your local analytics companies now; you are bound to need one in an
employment case coming near you soon.
No comments:
Post a Comment