Ray-Ban Smart Meta glasses, frames capable of recording and storing audio, video, and contextual data, are the newest innovative sensations taking the world by storm. The AI-powered glasses offer several benefits that can include real time voice-activated assistance and hands-free documentation. In the workplace, however, an employee’s use of Meta glasses can entangle employers between intersecting state privacy and monitoring laws, accommodation hardships, and labor rights issues creating a legal storm that heightens the risk of legal violations. Below are several legal considerations for employers to carefully evaluate as they consider whether and how to address and regulate employee use of Meta glasses:
Legal Consent: North Carolina is among the majority of states that follow a one-party consent rule, requiring only one participant’s consent to lawfully record a conversation. However, for employers with workers in states like Maryland, Delaware, and California that follow a two-party consent rule, employers should remain vigilant of employees who may use Meta glasses to capture private client and personnel communications. Employees, especially those in roles privy to confidential health, financial, and personnel information and/or hosting virtual meetings where participants may be located in other states, should be cautioned that their recording of these private conversations may require the consent of all parties to be lawful.
Privacy Concerns: Most states have already recognized an employee’s reasonable expectation of privacy in certain areas of the workplace, including employee bathrooms and locker rooms. A coworker’s inadvertent Meta recording in these private spaces may create exposure for state privacy claims and statutory liability. Even when companies choose to permit Meta glasses in the workplace, employers should establish clear policies that prohibit the use of AI glasses to capture audio or video in these and other sensitive locations.
Beyond ordinary privacy considerations, several states like New York and Connecticut require advance notice of electronic monitoring that include detailed disclosures to employees outlining the nature, scope, and use of workplace surveillance. Employers who approve and facilitate use of Meta glasses as a workplace management or investigatory tool should review applicable state law to determine whether advance notice is required to avoid liability. Failing to provide legally compliant notices can result in heavy statutory fines and penalties for organizations.
Finally, employers should also consider biometric privacy laws in states like Illinois, Texas, and Colorado that regulate the collection, use, and retention of facial or biometric data captured by AI devices. These statutes often require written disclosures, informed consent, and data security safeguards and policies prior to the capture, analysis, or storage of facial geometry, voiceprints, or other identifying characteristics. Failing to comply with these obligations can lead to statutory penalties and private rights of action for each collection, making it essential for employers to work with counsel when permitting AI glasses or similar technologies.
ADA Compliance: The Americans with Disabilities Act requires employers to provide reasonable accommodations to qualified individuals with a disability unless doing so would cause an “undue hardship” upon the business. In a recent federal lawsuit in the Middle District of Florida, at least one employee has alleged that her employer, Walt Disney Parks and Resorts, discriminated against her on the basis of her disability. Specifically, the employee complaint alleges Walt Disney denied her use of her prescribed Meta glasses to assist with her vision-related needs.
As we anticipate this court’s ruling and other guidance on this novel issue, employers subject to the ADA are reminded that they are under a duty to engage in the interactive process to determine whether requested accommodations are reasonable under the circumstances. An outright ban on the use of Meta glasses claimed to assist with a disability before conducting the required fact-intensive analysis may result in similar disability discrimination claims.
NLRA Protections: While employers may be considering total bans on recording in the workplace to address Meta glasses usage, private employers are cautioned that such policies may be violative of the National Labor Relations Act. The NLRA protects the rights of employees to engage in protected “concerted activity,” which occurs when two or more employees act for their mutual aid or protection regarding terms and conditions of employment. Such activity can broadly include acts intended to improve employee pay or address work-related safety concerns.
No-recording policies are unlawful if they are so restrictive that they interfere with or chill protected concerted activity. Absent a compelling business reason (often tied to confidential health or financial information maintained by a company), policies that generally prohibit all photography and audio and video recording in the workplace are likely overbroad, and thus, unlawful.
Employee use of Meta-glasses is a relatively new issue implicating several constantly evolving legal frameworks presenting new risks to employers. If you need assistance assessing legal risks specific to your organization, navigating accommodation processes, or implementing policies that are specific to AI glasses or similar technology in the workplace, the attorneys at Poyner Spruill are available to assist.
