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Fitbits helpful in employment cases, but also unreliable

Wearable technology has exploded in popularity over the past few years as a way of monitoring fitness, athletic performance, health and alertness. Fitbits can track things like calories burned, your heart rate at different times, the steps you’ve taken over the course of a day or a week, your blood sugar levels and even your sleep patterns.

This is useful information for people to monitor their own wellness metrics, but it could also potentially be useful evidence in legal disputes. Data from Fitbits and other wearable devices has already been used in personal injury cases in Canada. In one case, an injured woman used a Fitbit to show how much less active she was now than before the accident in question. Fitbit data also helped authorities in Pennsylvania support criminal charges against a woman who falsely reported that a man broke into her house while she was sleeping and raped her. The data showed that she was actually awake and out of bed at the time of the alleged home invasion.

There are plausible scenarios where Fitbit data could help resolve legal disagreements arising in the workplace by boosting a worker’s claim of mistreatment or undercutting such an accusation.

For example, let’s say a worker sues for handicap discrimination claiming the employer refused to reasonably accommodate the employee’s disability by denying a more flexible schedule, a more convenient work location or scaled-down job requirements. If the court ordered the employee to produce wearable device data showing his heart rate (which might be relevant to allegations of emotional distress), steps taken during the alleged period of disability (perhaps the worker claims he has walking limitations), or sleep patterns (maybe the worker claims he suffers from a sleep disorder that is impacting his ability to sleep), this could help the employer disprove the claim. From the employee’s perspective, such data could boost his case if the employer is disputing that the disability is real.

This doesn’t mean that there aren’t potential roadblocks to the use of wearable device data in employment cases. The technology is pretty new, and as with any new technology courts might be reluctant to admit it into evidence because they don’t trust the reliability of the data. But the potential use of Fitbit data is an issue worth keeping an eye out for, and it’s worth making a call to you labor and employment lawyer if you think it might have implications for your case.


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