Quick Hits
- Smart glasses, which can record audio, video, and capture facial recognition data, present significant employment law challenges for retailers.
- Overly broad recording bans can be illegal under the National Labor Relations Act.
- Retail employers may want to engage in an interactive process for accommodation requests related to smart glasses to avoid potential lawsuits under the Americans with Disabilities Act.
The Recording Problem: Know the State Laws
Unlike cellular phones, which are typically held in plain sight, smart glasses resemble ordinary glasses, making them far less conspicuous. Smart glasses manufacturers recommend turning off the glasses in sensitive spots like medical offices, locker rooms, and bathrooms. Employers, likewise, may want to make these expectations crystal clear. Enforcement, however, is a challenge and often relies on the honor system. This creates opportunities for legal risk and the need for mitigation. To date, smart glasses cannot be “bricked” like a cellular telephone, and their applications are not readily visible to anyone other than the wearer.
One of the areas of significant legal risk concerns smart glasses’ ability to record video and audio without the awareness and consent of the recorded subjects. About a dozen states require everyone’s consent before recording a conversation. If an employee records a meeting, conversation, or other interaction without telling participants and obtaining consent, both the employee and the company could face lawsuits or even criminal charges. In addition to retailers, health and financial industry employers may want to ensure that employees handling confidential information are especially careful given the stringent regulation of privacy in these industries.
Biometric data is also a crucial factor to consider. Smart glasses can capture facial recognition and eye tracking data, which is an untested area under the Genetic Information Nondiscrimination Act, and may trigger stricter state laws, such as Illinois’s Biometric Information Privacy Act (BIPA). While liability may not attach to the employer where the wearer is a low-level employee, employees who can be argued agents of the company may create bigger risks. Companies that collect this data without proper notice and consent may be subject to steep statutory damages.
Recording Policies
Tempted to just ban all recording devices? Hold that thought.
Under the National Labor Relations Act (NLRA), overly broad no-recording policies can be illegal. The National Labor Relations Board (NLRB) has opined that broad policies may interfere with employees’ rights to engage in protected activities. Any recording ban needs solid business justifications, like protecting privacy or confidential financial information.
Disability Accommodations
Employees are already suing over the right to wear smart glasses as a medical device. In one recent case, an employee whose doctor had prescribed smart glasses to help her with her light sensitivity and astigmatism claimed her employer discriminated against her by denying her request to use them.
Retailers selling AI-assisted medical products have stated that smart glasses prescribed for medical purposes may serve a range of vision-related functions, from electronic magnification and AI-driven object recognition to hands-free navigation assistance, and may be tailored to address specific conditions such as age-related macular degeneration, diabetic retinopathy, or retinitis pigmentosa.
While the Americans with Disabilities Act of 1990 (ADA) does not entitle employees to the accommodation of their choice where a comparable accommodation exists, blanket bans on smart glasses could backfire where a physician specifically prescribes smart glasses. This makes it more important for employers to engage in an interactive process when employees request accommodation under the ADA.
Practical Tips
Retail employers may want to consider the following tips when addressing the use of smart glasses in the workplace:
- creating clear policies specifically addressing smart glasses and recording-capable wearables,
- updating confidentiality agreements and the employee handbook to cover wearable tech risks,
- assessing how these smart devices interact with legal compliance obligations, and
- building a process for handling accommodation requests related to smart glasses.
Bottom line: Smart glasses are here to stay. Employers that proactively address these issues now will save themselves significant headaches in the future.
Ogletree Deakins’ Retail Industry Group will continue to monitor developments and will provide updates on the Retail and Technology blogs as additional information becomes available.
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