Wearable Device Data: The Next Big Thing for Employment Litigation Cases

By Karla Grossenbacher. Esq. and Selyn Hong, Esq. of Seyfarth Shaw LLP 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, workersaEUR(TM) 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 aEURoeassessment periodaEUR? 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 aEURoedisabled,aEUR? has a aEURoeserious medical conditionaEUR? 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 individualaEUR(TM)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 aEUR" to investigate and, if appropriate, discount a plaintiffaEUR(TM)s claim that his or her aEURoemajor life activitiesaEUR? like walking or sleeping have been substantially limited. In harassment cases, wearable device data could show whether a plaintiffaEUR(TM)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 companyaEUR(TM)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 aEUR| Right? The information gathered by an individualaEUR(TM)s wearable devices is inherently personal. Wearable device data can be obtained from either the wearable device manufacturer or directly from the individualaEUR(TM)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.

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