New Apps Gauge Worker Moods, Though at Great Privacy Risks
By Joanne Cleaver
Take a deep breath. Center your thoughts. Be in the moment.
If that felt good, your employer might like to know about it — especially through apps that tracked how you feel, as well as when and whether your inner peace converted to better work.
Mindfulness apps like Calm, Headspace, Moodbeam and others rode the COVID-19 coattails to record financial and user results last year, according to company data and news reports. Employee-benefit versions of their services played a big part in their revenue and user growth.
But peace and privacy don’t always coexist easily, privacy consultants and lawyers told Digital Privacy News.
App developers, meanwhile, insisted that employers received only aggregate data that indicated employees’ mental and emotional health.
“Companies should ask, should they be doing this as a company at all, given what they could or might do with the information?”
Joseph Emerson, LevelUP Consulting Group.
And, human-resource consultants said that employers were likely to use only aggregate data collected from such mindfulness apps to monitor the top-line mood of their workforces.
“It’s up to you as a person to record or use the app and to be truthful about how you’re feeling,” said Joseph Emerson, a director with the LevelUP Consulting Group. The New York firm advises employers on privacy, data and other issues.
“Companies should ask, should they be doing this as a company at all, given what they could or might do with the information?”
How They Work
The apps generally ask users to chart their moods, feelings and perceived mental wellness — and they typically include prompts to take time out to meditate, or practice “mindfulness.”
That is the practice of consciously being in the moment.
App developers said that the appeal to employers was for collecting a top-line reading on how employees were handling stress and how they felt during the workday.
“The legal repercussions of employee privacy … will be dependent on how an individual employer defines the purpose of the applications.”
Michael Hellbusch, Rutan & Tucker LLP.
Considering that wellness apps are relatively new and that corporate adoption of them is brand-new, most employers likely haven’t updated their privacy policies and procedures accordingly, consultants said.
Data collected from wellness apps very likely is not covered by health-privacy laws because it isn’t integral to health care providers, they told Digital Privacy News.
And whether or not the data is covered by employee protections in the California Consumer Privacy Act depends on how essential the employer thinks it is.
“Simply put, the more tangential the data-collection and use are to employment, the less likely it is an exemption to the California Consumer Privacy Act,” said Michael Hellbusch, partner at the Rutan & Tucker LLP law firm in Costa Mesa, Calif.
“The legal repercussions of employee privacy as related to third-party apps supplied by employers will be dependent on how an individual employer defines the purpose of the applications.”
The COVID Factor
Emerson said that employers reasonably want to know how employees are faring under the extraordinary stresses of COVID-induced disruptions.
But, he added, the burst of data suddenly available from mindfulness apps also puts employer’s commitment to individual privacy to the test.
“It really boils down to, do the employers have the control, maturity and sophistication to securely and appropriately use the information that’s out there,” Emerson told Digital Privacy News.
“Employers do have access to aggregated trend data to help them understand utilization and efficacy of the tool.”
Lindsay Crittendon, Headspace for Work.
“How are employers set up to absorb this information as it comes in?” he posed, for instance.
“Perhaps, the company provides information to managers and (sees) that an employee was sad every day this week and his productivity was down. Better check on him.
“That’s the altruistic response,” Emerson continued. “But the conclusion also could be: ‘You’re sad a lot. Maybe you’re not happy here — and you should look for another job.’”
Peaceful Profits
In 2018, about half of employers offered a mindfulness or wellness service or benefit, according to the Health and Well-Being survey conducted annually by Fidelity Investments and the Business Group on Health, an employer consortium.
But by the middle of last year, 95% of employers included an emotional and mental-wellness benefit, the survey found.
There’s money in mindfulness.
One of the biggest players, the privately backed Calm in San Francisco, ended last year with a $2 billion valuation, according to news reports.
The apps “only provide information at the aggregate level to help us understand how Kaiser Permanente members as a whole are using the apps.”
Kaiser Permanente.
The valuation was based in no small part on a burst of sales: 600 employers now are eager to extend virtual comfort to workers now suddenly isolated in remote offices.
Calm’s primary rival is Santa Monica-based Headspace, which offers employees of 1,700 companies its apps through a workplace program — attracting $215 million from 22 investors.
Lindsay Crittendon, head of Headspace for Work, told Digital Privacy News that employers offered its mediation app as a benefit to “impact their people’s relationship with stress.
“While we can’t control most stressors we face regularly, through mindfulness training, we can condition our brains to respond to stress in a way that is protective of our health and well-being,” she said in a statement.
Crittendon said that Headspace offered the app “within the context of respect for employees and employee family health,” in conjunction with health benefits.
Corporate customers, she added, gained a “limited set of information for a single purpose: to verify eligibility of the benefit and establish communication pathways for education-oriented emails.
“Employers do have access to aggregated trend data to help them understand utilization and efficacy of the tool.”
“Happier workers are more productive, take less sick leave and are more likely to stay with the business.”
Jonathan Elvidge, Moodbeam.
Each employee controls their data through an individual privacy agreement with Headspace, Crittendon said, and employers do not have access to how individuals use the app — including journal entries and personal metrics.
What Kaiser Permanente Does
That’s how healthcare giant Kaiser Permanente said it used the data it collected from Calm and another wellness app, myStrength.
“Calm and myStrength only provide information at the aggregate level to help us understand how Kaiser Permanente members as a whole are using the apps,” a spokesman told Digital Privacy News in a statement.
Meanwhile, a U.K. upstart, Moodbeam, said it shared personal data by reporting employees’ collective mood and states of mind daily to employers, said cofounder Jonathan Elvidge.
“The ROI stems from supporting individuals when they need it,” he told Digital Privacy News, “and from making changes within the organization (based on what the data shows) to improve happiness within the organization.
“Your information, all your identity information, can be sold through the analytics out there.”
Barb Holland, Society of Human Resource Management.
“Happier workers are more productive, take less sick leave and are more likely to stay with the business.”
But employers’ stated motivations must be balanced with workers’ rights to see and control the data collected about them through the apps, cautioned Dan Clarke, a privacy expert and president of IntraEdge, a Phoenix company that designs corporate privacy-compliance programs.
“Employees have the right to say: ‘I want to see the data you have on me,’” he told Digital Privacy News. “Every employee can request their data and request that certain aspects of the data be deleted.”
The apps’ ongoing data-collection activities also require employers to continually update privacy policies to cover the evolving use of the data.
“That’s a lot more ongoing work than just writing the privacy policy,” Clarke said.
Not Protected by Law
As a rich trove of data accumulates, individuals must be aware that it is not covered by federal health care privacy regulations, said Barb Holland, knowledge adviser to members of the Society of Human Resource Management, an industry association based in Alexandria, Va.
Direct affiliates of health-care providers fall under federal privacy protections for healthcare data, but not apps that are not integral to healthcare providers, Holland explained.
“Your information, all your identity information, can be sold through the analytics out there,” she told Digital Privacy News. “I don’t know that a lot of patients understand that.”
Employers like Kaiser, Holland noted, are likely to find value in the high-level analysis and trend-tracking supported by aggregated app data — just as employers monitor overall employee attitudes through general data provided by employee-assistance programs.
Employees can bear in mind that, under California law, they have the right to specify that their data not be sold, said IntraEdge’s Clarke.
“Employees have the right to say: ‘I want to see the data you have on me.’”
Dan Clarke, IntraEdge firm.
The law also allows employees to see the data collected about them — and they can demand that some information be deleted.
“De-identified data is always exempt from privacy laws,” he told Digital Privacy News. “As long as you can’t identify employees, (the app) can share information with management without violating privacy law.
“But they can’t pretend it’s de-identified,” Clarke continued. “They have to aggregate it is so an employer can’t reconstruct individual identities.”
Joanne Cleaver is a business writer in Charlotte, N.C.
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