Smart glasses’ remarkable ability to record audio, video, and even capture facial recognition data and leverage artificial intelligence (AI) applications for future use by the wearer or others presents significant employment law challenges for retailers everywhere.

• Smart glasses, which can record audio, video, and capture facial recognition data, present significant employment law challenges for retailers.
• Overly broad recording bans can be illegal under the National Labor Relations Act.
• Retail employers may want to engage in an interactive process for accommodation requests related to smart glasses to avoid potential lawsuits under the Americans with Disabilities Act.

Unlike cellular phones, which are typically held in plain sight, smart glasses resemble ordinary glasses, making them far less conspicuous. Smart glasses manufacturers recommend turning off the glasses in sensitive spots like medical offices, locker rooms, and bathrooms. Employers, likewise, may want to make these expectations crystal clear. Enforcement, however, is a challenge and often relies on the honor system. This creates opportunities for legal risk and the need for mitigation. To date, smart glasses cannot be “bricked” like a cellular telephone, and their applications are not readily visible to anyone other than the wearer.

One of the areas of significant legal risk concerns smart glasses’ ability to record video and audio without the awareness and consent of the recorded subjects. About a dozen...

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