Technology is constantly providing new ways to help both employers and employees in New Jersey. Unfortunately, sometimes a technology that helps employers does so at employees’ expense. Our legal system can be slow to catch up with new innovations. Fitness trackers, which are devices individuals can wear to track movement and other vital statistics, are becoming more and more common. Many employers have taken notice of this. A recent Washington Post article describes fitness trackers as “an increasingly valuable source of workforce health intelligence for employers.” Employers’ access to, and use of, employees’ fitness tracker data raises concerns about privacy. In some cases, it could raise concerns about employment discrimination. Federal and New Jersey employment laws prohibit discrimination on a wide range of factors, and protect privacy in certain areas. Opinions are mixed on the extent to which they cover fitness tracker data.
Arguably, employers use employee fitness tracker data to monitor performance. The devices record information about an employee’s movement, or lack thereof. This could be relevant to job performance, but it could also present problems. The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating against employees and job applicants on the basis of disability. N.J. Rev. Stat. § 10:5-12(a). The statute defines this term very broadly, covering a wide range of physical and mental conditions that “prevent[] the normal exercise of any bodily or mental functions.” Id. at § 10:5-5(q). At the federal level, the Americans with Disabilities Act (ADA) of 1990, as amended by the ADA Amendments Act (ADAAA) of 2008, also prohibits employment discrimination. This statute’s definition of “disability” includes both actual and perceived disabilities. See 42 U.S.C. §§ 12102(1)(C), 12112.
State and federal antidiscrimination law also prohibit discrimination by employers based on genetic information. This could be an issue for employers using fitness tracker data in some situations. The NJLAD defines “genetic information” as “information about genes, gene products or inherited characteristics.” N.J. Rev. Stat. § 10:5-5(oo). The plain language of the statute suggests that the information does not have to come from a genetic test ordered by the employer. The federal Genetic Information Nondiscrimination Act (GINA) focuses more specifically on genetic testing. It defines “genetic information” as information derived from a person’s genetic test or that of a family member, or “the manifestation of a disease or disorder” in a member of that person’s family. 42 U.S.C. §§ 2000ff(4)(A), 2000ff-1(a).
With regard to privacy concerns, legal protection might be scant. Fitness tracker data may appear to be related to health information protected under the Health Insurance Portability and Accountability Act (HIPAA) of 1996. HIPAA’s Privacy Rule, however, applies to medical providers and insurers, not employers. 45 CFR § 160.102(a). The Fair Credit Reporting Act (FCRA) sets strict limits on employers’ use of consumer credit information, see 15 U.S.C. § 1681b(b)(2), but this does not currently include fitness tracker data. Whether employees have any legal protection against employers’ use of data collected outside of work hours remains to be seen.
The Resnick Law Group’s team of knowledgeable and experienced employment attorneys advocate for the rights of employees, former employees, and job seekers in New Jersey and New York. To schedule a confidential consultation to see how we can help you, please contact us today online, at 973-781-1204, or at 646-867-7997.
More Blog Posts:
The Uncertain Privacy of Genetic Information, and How It Could Affect New Jersey Employees, The New Jersey Employment Law Firm Blog, January 4, 2019
New Jersey Court Clarifies Liability for Violations of Statute Governing Consumer Background Reports, The New Jersey Employment Law Firm Blog, June 2, 2017
Federal Law Protects Privacy Rights of Employees and Job Applicants During Hiring Process, The New Jersey Employment Law Firm Blog, May 26, 2017