By Johanna T. Wise and Andrew J. Masak

Every day new stories about the uses (and misuses) of drones surface in the media.

They have been used to: photograph the 2015 Winter X Games, assist in firefighting operations, monitor agricultural drought, monitor pipelines in remote areas of the world, and take pictures for realtors.  One drone even famously crashed on the White House lawn.  Clearly drones are opening up the world to a whole new set of technological possibilities – perhaps the most widely-published future use being Amazon’s stated position that within four to five years, it could have a fleet of octocopters delivering orders at customers’ doorsteps.  The sky’s the limit to what drones could conceivably be used for, and that includes the workplace.

The president of the Association for Unmanned Vehicle Systems – Michael Toscano estimates that drones could become an $82 billion, 100,000-job industry by 2025.  Indeed, one of the leading commercial drone manufacturers in the world is currently seeking investors for a $10 billion valuation according to media sources.

The Legal Landscape and Regulatory Framework

As with so many areas where law and technology find themselves uncomfortably intersecting, the legal landscape has yet to catch up with a robust legal framework.  A patchwork of state law has emerged, and at least 16 states have approved some form of legislation. Most of these laws focus on law enforcement and prevent the police from using a drone to collect information about an individual without first obtaining a warrant. A few states, however, have adopted privacy-related restrictions which prohibit using a drone to intentionally conduct surveillance on a person or private property in certain situations.

Outside the individual states, the Federal Aviation Administration (FAA) has attempted to flex its regulatory muscle by applying old rules and proposing new ones to better fit the rise of drones.  Currently, anyone in the U.S. who wants to fly an aircraft — either manned or unmanned — must obtain FAA authorization, and failure to do so may result in fines of ten thousand or more dollars.   With this in mind, several companies have already successfully navigated the existing FAA framework (oil companies, real estate companies, and even CNN have applied for authorization).  Thus, while the dust continues to settle, it’s not unlikely that businesses may turn increasingly to drones in the workplace.

Surveillance in the Workplace

The rise of drones has opened the door to countless possibilities.  Society as a whole, and the business community in particular, have barely scratched the surface in unleashing their capabilities.  Some ways employers specifically could harness the power of drones include:

General Monitoring for Discipline or Safety – Perhaps the greatest potential for drones in the workplace involves using drones instead of traditional video cameras as surveillance devices.  Drones can access places where stationary cameras can’t.  What’s more, they can follow an employee and get a more complete picture of an incident. In this way, drone surveillance can aid an employer in disciplining an employee and reviewing accidents and safety issues.

Monitoring Employees Claiming Leave Status –Video surveillance of employees outside the workplace claiming workers’ compensation or disability benefits already occurs.  Indeed “watching” an employee claiming a benefit under false pretenses is a powerful tool employers and disability insurers alike use.  Drones may help facilitate greater monitoring of employees who are claiming leave status under false pretenses.

Non-Compete, Non-Solicit, and Trade Secrets Monitoring – Will employers be able to use drones in unique ways monitoring their trade secrets?  Is it possible for employers to program drones to help monitor whether employees are soliciting customers or other employees? Or are these uses still a bridge too far?

Several concerns and potential pitfalls remain.  Although current Federal law does not generally require an employer to provide notice to an employee and obtain consent to video surveillance in public areas in the workplace, state and local laws may impose additional requirements or limitations. Moreover, it remains a best practice to provide advance notice and warning to employees of video surveillance, drone or otherwise. Thus, as a threshold matter, employers considering using drones in the future to provide surveillance of their workers should strongly consider obtaining consent from employees before implementing any drone program.  Employers facing a unionized workforce should be especially cognizant of consent issues as drone usage would likely constitute a material change to the terms and conditions of employment that is subject to collective bargaining.

The use of drones to monitor employees and any resulting discipline could open employers up to potential discrimination claims. Just as the use of drivecams in vehicles or other tracking technologies must be applied in a non-discriminatory manner, so too should employers consider their use and application of drone surveillance.  Any selection decision or resulting disparate impact based on a protected category could arguably be found to violate the law. In this regard, employers considering using drones would be well advised to maintain policies and procedures describing how they use drones and a neutral process for selecting who will be monitored and under what circumstances.

For more information on the use of drones in the workplace, please contact the authors or your Seyfarth attorney.