“Private Eyes Are Watching You” … With Google Glass?

 As I started typing about “Google Glass,” that 80”s song by Hall and Oates began to torment me over and over again

 Private Eyes
they’re watching you
they see your every move
Private Eyes
they’re watching you
Private Eyes
they’re watching you watching you watching you watching you

So let’s talk about Google Glass.  Google Glass is essentially a phone mounted on glasses in front of one’s eyes, with a front facing camera, and heads-up display with facial recognition and eye tracking technology which can show icons or stats hovering above people you recognize.  Creepy, but kind of cool.  You can also read directions as you walk and take video from one’s point of view.  Seems like a fascinating next step in technology.  We are NOT badmouthing it, but one does need to consider any new product’s proper use.  Google Glass also presents fascinating potential business applications.

One can already take video of embarrassing moments with phones, but these glasses increase such opportunities.  Not surprisingly, many casinos prohibit the glasses, as do some theaters, and other businesses.  One can imagine someone using such glasses in a restroom or to photograph confidential documents, or perhaps to be the “ultimate snitch” to trap someone in an illegal act.  Google Glass could take “distracted driving” to a new level as a driver works through the many functions.

And then we have the NLRB; are they going to continue to broadly strike down company restrictions on employees taking and posting photos?  Surely, even the NLRB will acknowledge the serious potential invasion of privacy issues presented by employees improperly using Google Glass?

Businesses may want to consider prohibiting the use of Google Glass by customers and the public in their workplace.  A business is not so worried about the NLRB when they prohibit non-employees from wearing Google Glass in their theaters, stores, casinos, etc.

Like texting, employers should prohibit Google Glass or similar interactive systems while employees operate vehicles and equipment.

 Because of their distracting effect, employers should be able to prohibit their use while employees are working, as well as common law privacy rights  in bathrooms and locker rooms.

 The NLRB dislikes general or broad prohibitions, but thought should be given to prohibiting conduct that constitutes invasion of privacy or harassment, such as filming down a co-worker’s blouse. 

 Arguably the best choice is to simply ban the use or possession of such glasses while working.  One avoids vague rules based on “content” or what the employee does with the glasses. Our best guess is that the Board will be less concerned with outright prohibitions on use of the glasses, certainly at least within sensitive areas or when performing safety-sensitive tasks. So long as the business case can be made, the prohibition seems reasonable and not designed to some how chill employees Section 7 free speech rights. If you read the underlying facts carefully, the recent NLRB Opinion on workplace photography was more problematic because the employer purported to dictate what the employee could do with the photography once taken. Barring photographic devices (or even the taking of photos) in a vacuum might  have been far less problematic. Banning these devises at the outset (instead of attempting to impose restrictions on their workplace use) may be the simplest and safest alternative.  Employees seem to draw greater Board scrutiny when they try to get “cute” with their policy language, require advance permission, offer vague proscriptions without examples or definitions, etc. That’s a long way of saying that the best approach may be to deal with this much like you would weapons in the workplace, adding an explanatory statement at the outset referencing considerations of workplace confidentiality, safety, privacy (using a different term), harassment, etc.  Talk to your counsel.

 Some businesses are banning Google Glass.

 An August 7, 2013 article listed 10 Places That Have Banned Google Glass:”

1.      Banks and ATM’s (protect account information);

2.      Sports Arenas and Concerts;

3.      Locker and Dressing Rooms;

4.      Bathrooms;

5.      Automobiles;

6.      Hospitals (what about other settings handling private medical information?);

7.      Classrooms;

8.      Casinos;

9.      Bars (although one assumes this rule might cause controversy because 1/2 of the photos on Facebook appear to involve drinking);

10.    Movies.

 And what about childcare centers and other settings with vulnerable children?

 What about any setting involving credit card information?  Confidential and trade secret materials?  Customer documents?  Government material?

 After evaluating your workplace, you will then need to integrate any rules about Google Glass with the more sensitive area of rules about cameras and handheld devices, AND posting photos.

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
This entry was posted in attitude/culture, employer policies, harassment, NLRB, privacy and tagged , . Bookmark the permalink.

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