Brain Scanners and the U.S. Workforce: Could it Happen Here?

By Thomas McKinney

brain scanners at workImagine that you began your day with an argument with your spouse or teenager. You’re naturally upset and frustrated by the quarrel, and this likely colors your emotions as you head to your job and start your work day. Thankfully, you get busy performing your job tasks and the busyness and distractions of your work eventually puts the unhappy feelings about your family disagreement on the back burner. Once you return home, you talk out the problems that instigated the fight with your loved one, and the issue is resolved. Peace is made, family life happily resumes, and your career is not impacted.

Now imagine a very different scenario. Shortly after arriving at work after your morning argument, your supervisor pulls you aside. He tells you he has been alerted to your emotional upheaval and he is sending you home for the day. You head home frustrated and even more upset. Your teen is still there, and the disagreement escalates. Meanwhile, at work, you miss an important meeting, which detrimentally impacts your job. This day has spectacularly spiraled out of control. This is all due to the fact that your job requires you to wear a brainwave sensor that alerted your supervisor to your frustration over your morning argument. According to recent news reports, this is not a science fiction movie plot, but a reality for many workers in China.

Brain Scanners and Chinese Workers

In late April, the South China Morning Post reported that Chinese workers in specific jobs deemed “high risk” are being made to wear brain scanners. This includes factory workers, power grid employees, public transportation and the military. These devices are designed to monitor the wearers’ brain waves and alert supervisors and employers when a worker’s emotional state is heightened.

The devices are positioned in employee caps and safety headgear. Artificial intelligence (AI) algorithms are applied to read the wearer’s brainwaves and detect emotions like rage, anxiety, depression and fear. The sensors are likely measuring EEG patterns. When a manager at one of these companies is alerted that a worker is feeling stressed, enraged or sad, the employer takes action against the “offending” employee. The supervisor may send the worker home, move him to another position or simply give him a time-out. The employers describe this approach as a money saver.

Reports claim the tech has been in use since 2014. Companies using these scanners tout impressive results and savings of 140 million yuan since 2016, nearly 21 million dollars in U.S. currency. One official claimed increased profits of $315 million since the tech was initially introduced to workers. With those numbers floating around, you have to wonder if U.S. companies might start sniffing around the idea of employee brain wave monitoring.

American Workers and Some Potential Implications

Money is a big motivator. So, it’s not out of the realm of possibility that some American employers may try to introduce China’s practice of monitoring employee’s emotions with scanners to the U.S. workforce. But how successful might they be? Would our labor and employment laws protect workers from this invasive practice?

Disability Protections for Mental Impairment

Naturally, the thought of “emotion monitoring” brings to mind workers who suffer from depression and other psychological/psychiatric disorders. The Americans With Disabilities Act protects workers with disabilities from discrimination in the workplace. In 2008, the definition of disability under the ADA was expanded to include “invisible” conditions. Mental impairments that substantially limit any major life activities qualify for protection as a disability. This includes clinical depression, bipolar disorder, PTSD, and several anxiety disorders.

To qualify as a protected disability, the impairment must be a long-term problem, though not continual. This means you have had a history of dealing with the issue for several months or more, but it’s not mandatory that you experience the problem every day. The ADA requires employers to make reasonable accommodations for workers suffering from covered disabilities. This only applies if these accommodations don’t create undue hardship for the employer. Great financial expense may qualify as a hardship.

With these parameters, it’s easy to see how a company might argue that the use of brain scanners for workers doesn’t violate the ADA. They might claim that sending an anxious or depressed worker home, giving them an extended break, or even moving them to a different position qualifies as reasonable accommodation under the ADA. If the employee refuses to participate, the company can then terminate the worker, claiming undue hardship due to the potential financial impact of abandoning the monitoring. It’s a frightening proposition with a slippery slope of potential consequences.

Employee Privacy Laws

You may ask, “Aren’t these scanners an invasion of my privacy?” They probably are. But employee privacy rights are constantly being challenged and overridden, and technology is further blurring the lines. Social media is an example of this. An increasing number of employers screen job applicants through their social media accounts before hiring. After being hired, your activity online outside of work, can get you fired. Your employer already has the right to monitor your computer use at work, down to your keystrokes. Is it such a leap to consider whether monitoring how your emotions impact your job performance might fall under the purview of an employer? Possibly. But stranger things have happened.

This topic is one that needs further exploration. Even if you are performing your job well, might it eventually be possible to be terminated because you have too many emotionally “bad” days? Who would own this data, and could it be used against you in obtaining future employment? These are questions that law makers may one day be discussing. What does the future of employment law hold as technology advances, and what limitations can the law place on employers in workplace monitoring?

At Castronovo & McKinney, we aren’t yet defending employees against the use of brain scanners for emotion monitoring, but you can count on us if workplace brain scanners ever come to pass in New Jersey. Meanwhile, our dedicated employment law attorneys are fighting for your employee rights every day. Contact us if you have questions or concerns about unfair labor practices, discrimination, harassment, or other employment issues at your job.


Companies in China Are Using Brain Sensors to Monitor Employees’ Emotions
With brain-scanning hats, China signals it has no interest in workers’ privacy
‘Forget the Facebook leak’: China is mining data directly from workers’ brains on an industrial scale
‘Mind-reading’ tech being used to monitor Chinese workers’ emotions

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.