Quick Hits
- AI-enabled smart glasses create workplace compliance risks by enabling discreet recording, data capture, transcription, and AI analysis in settings where traditional smartphone policies may not apply.
- Employers may want to update recording and confidentiality rules to address wearable devices while accounting for consent laws, biometric privacy, trade secrets, investigations, and third-party data handling.
- Employers may want to ensure that restrictions are narrowly tailored to comply with labor laws and to preserve processes for disability accommodations, meeting protocols, and consistent manager enforcement.
The Smartphone Isn’t the Only Compliance Problem
AI-enabled glasses look like ordinary eyewear. But depending on the model, they can take photos, record video and audio, livestream, transcribe conversations, translate speech, and send what they capture to an AI assistant for analysis—all hands-free, and often with little more than a small indicator light to signal that anything is happening.
As these devices move from novelty to mainstream, employers are fielding new questions: Can an employee wear them on the floor? In a meeting? In an investigation interview? What about a candidate who shows up to an interview wearing them? The short answer is that existing policies may not have an answer at all. Below are seven issues employers may want to address now.
Issue #1: Workplace Recording and Consent Laws
Recording laws (also known as wiretapping laws) vary by state. Federal law and most states follow a one-party consent rule: a conversation may be recorded if one participant consents—including the person doing the recording. A minority of states, including California, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington, generally require the consent of all parties, at least where participants have a reasonable expectation of privacy.
Smart glasses make inadvertent violations easy. An employee in a one-party consent state who joins a video call with colleagues in an all-party consent state may trigger the stricter rule without realizing it. For multistate employers, a single, uniform recording rule may not map neatly onto every location—or every meeting.
Traditional recording policies compound the problem. Many were drafted with phones and handheld recorders in mind and refer to “cameras” or “recording devices” in ways that may not obviously reach a pair of glasses. If the policy does not clearly (either specifically or broadly) cover the device, enforcement becomes an argument rather than an expectation.
Issue #2: Trade Secrets and Confidential Information
Trade secret protection depends, in part, on an employer’s reasonable efforts to keep information secret. A device that can passively capture everything in a wearer’s line of sight tests those efforts. Risk areas include:
- Manufacturing environments, where proprietary processes, equipment configurations, and formulas are visible on the floor.
- Customer information, including data displayed on screens or discussed on calls.
- HR investigations, where witness identities and allegations are highly sensitive.
- Internal business discussions, such as strategy sessions, pricing, and deal planning.
- Attorney-client communications, where a recording—particularly one routed to a third-party AI platform—could raise questions about confidentiality and potential waiver of privilege.
Uploading captured material to a cloud-based service adds another layer: once information leaves the employer’s systems, control over it may be lost.
Issue #3: Privacy and Biometric Data
Smart glasses do not just capture images; they can capture faces and voices. If captured data is processed using facial recognition or voiceprint technology, biometric privacy statutes may come into play. Illinois’s Biometric Information Privacy Act (BIPA), with its private right of action, is the most prominent example, while Texas, Washington, and a growing number of comprehensive state privacy laws also regulate biometric data.
The privacy implications extend beyond employees. Customers, patients, visitors, and vendors may be recorded without knowing it—raising concerns in health care, retail, financial services, and any setting where third-party privacy is expected. And when captured information is fed into outside tools, employers may have limited visibility into how that data is stored, analyzed, or used.
Issue #4: The NLRA Complicates Blanket Prohibitions
The instinctive response—ban the glasses—carries its own risk. Section 7 of the National Labor Relations Act (NLRA) protects employees’ right to engage in protected, concerted activity for mutual aid or protection, whether or not they are unionized. The National Labor Relations Board (NLRB) has long recognized that recording can, in some circumstances, be part of protected activity, such as documenting unsafe conditions or capturing evidence of disparate treatment.
Under the Board’s 2023 decision in Stericycle, Inc., a work rule that could reasonably be interpreted to chill Section 7 activity is presumptively unlawful unless the employer shows the rule advances a legitimate and substantial business interest that cannot be achieved with a more narrowly tailored rule. The Board’s composition and priorities shift politically, and Stericycle may be revisited, but employers may want to draft with the current standard in mind.
The practical lesson: employers may want to tie restrictions to specific, articulated interests—confidentiality, safety, privacy, privilege—and to specific locations or activities, rather than prohibiting all recording everywhere.
Issue #5: ADA Accommodation Considerations
Smart glasses are not just consumer gadgets; for some employees, they may function as assistive technology. Real-time transcription and captioning may help employees who have hearing-related conditions. Object recognition, text reading, and scene description may assist employees with vision-related conditions. Prompts and reminders may support employees with certain cognitive or neurological conditions.
A request to use smart glasses as an accommodation should trigger the interactive process under the Americans with Disabilities Act (ADA) and analogous state laws. A blanket ban does not relieve an employer of that obligation. Employers may consider whether the device can be used with recording or AI features limited, in designated areas, or with other safeguards—or whether an alternative accommodation would be effective.
Issue #6: Interviews, Investigations, and HR Meetings
Some of the most sensitive moments in the employment relationship happen in a conference room. Smart glasses raises distinct questions in each:
- Candidate interviews. A candidate may use smart glasses to record the interview—or to receive real-time coaching or answers—raising both consent and assessment-integrity concerns.
- Workplace investigations. Undisclosed recordings can compromise witness confidentiality, chill candor, and complicate the investigative record.
- Discipline and termination meetings. A recording made without the employer’s knowledge may surface later as evidence in litigation or an agency charge.
Practical protocols may include asking at the start of every interview or meeting whether any device is recording, documenting the response, reminding participants of applicable policies, and offering an alternative—such as a written summary—where appropriate. HR professionals may also want to be trained to recognize the devices, since they may look like ordinary prescription glasses.
Issue #7: Policy Drafting Considerations
For most employers, the fix is not a new policy but an updated one. Suggested action items may include:
- Reviewing recording-device policies. This includes identifying gaps created by wearable technology.
- Defining covered devices broadly.
- Focusing on function—capturing audio, images, or video, or transmitting data—rather than form.
- Expressly including wearables and AI devices.
- Naming smart glasses and similar technology to remove ambiguity.
- Addressing confidentiality and safety rationales.
- Articulating the business interests behind each restriction and where it applies.
- Preserving NLRA rights. This would include clear savings language and avoiding overbroad prohibitions.
- Leaving room for ADA accommodations.
- Providing a path for employees to request exceptions through the interactive process.
- Training managers on enforcement.
- Helping supervisors recognize the devices and applying the policy consistently and lawfully.
Practical Takeaway
The question is no longer whether employees will bring AI-enabled eyewear into the workplace. The question is whether employers’ policies were written for a smartphone era and are prepared for a wearable-AI era.
Many employers already have recording policies. Few were designed for glasses that can passively record, transcribe, and analyze the workplace. Because this technology sits at the intersection of privacy, labor relations, accommodations, investigations, trade secrets, and AI governance, a measured, cross-functional review now may prevent a far more complicated conversation later.
Ogletree Deakins’ Artificial Intelligence and Innovation Practice Group and Cybersecurity and Privacy Practice Group will continue to monitor developments and will post updates on the Artificial Intelligence and Innovation, Cybersecurity and Privacy, and Employment Law blogs as additional information becomes available.
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