Gamification and Employment Law Compliance

Gamification is the now-hot idea of importing game design techniques into any arena requiring human motivation, including the workplace.  There are a number of compliance points around gamification with which employment lawyers ought to be concerned.  My overall perspective is that these are manageable risks — and that gamification can be successfully deployed in the workplace.

Gartner defines gamification as “the use of game mechanics and experience design to digitally engage and motivate people to achieve their goals.”  Airline frequent flyer miles are often considered a gamification program, as are buy-ten-get-one-free cards.   According to Entrepreneur Magazine:

Gamification works through exploiting the natural human love of competition, trivia challenges, status building, sense of pride, and desire for rewards. Game-associated elements like badges, levels, challenges, leaderboards and rankings motivate those who crave challenge and competition, especially among their peers.

Obviously, gamification has a role to play in the employment context.   This piece by Dan Scwhabel is an interview with Adam Penenberg who wrote Play at Work: How Games Inspire Breakthrough Thinking. According to Penenberg:

The Entertainment Software Association estimates that 70 percent of major employers use interactive software and games for training. Research firm Gartner projects that by 2014, 70 percent of 2,000 global organizations will depend on gamified applications for employee performance, health care, marketing, and training, and 50 percent of corporate innovation will be gamified, with American corporations spending several billion dollars on it.

In practice, a company might award points on a leaderboard for completing a training program, give e-badges for achieving a milestone (such as feedback from customers) incentivize efficient expense reporting and approvals, and encourage a desired change of corporate culture (such as reducing certain risk-averse behavior).   Gamification is even being applied to the performance review process.   There is plenty more to read about gamification, such as this Wharton at Work article.

Let’s turn to some of the risk points.  As said above, m y overall perspective is that these are manageable risks — and that gamification can be successfully deployed in the workplace.

  • ADA.  Gamified workplaces must remain ADA compliant.  The ADA and its state analogues may well require that employees are able to fully participate in a gamification program, especially if there are tangible workplace benefits.  This might be through a reasonable accommodation and the program should be designed to be compatible with adaptive and assistive technologies.  See also “Wellness programs and privacy, below.”
  • Discrimination.  The game must not reinforce and reward stereotypes and past stereotypical practices.  By building stereotypes into games, the results may reflect unlawful bias.
    • Gender.  My intent  here isn’t discussion about gender and video games – there are a great many discussions out there, and an essay the length of a blog post is bound to seriously misstep.  However, an employment lawyer must understand that different players have different approaches to gaming and that rewarding one kind of approach to gaming may implicate expected gender norms.  There is a great deal of empirical research about gender and video games, including in the gamification context.  I’d suggest that employment lawyers look at a game’s reliance on, or playing to, gender differences and gender norms/expectations/stereotypes to ensure that results are driven by actual performance rather than contorted by the artifice of the game environment.
    • Age.  Players of differing ages may have different experiences with, and understanding of, video games in general.  If younger players are better participants in the gamification environment due to their lifetime of experience with games, an enterprise might be engaged in a discriminatory employment practice to the extent it rewards and penalizes employees.

It is important that any adverse employment consequences based on gamification results ought to be carefully pinned to facts about actual performance and not dependent on the artificial environment of the game or its design.

This isn’t all negative: done right, gamification may be able to reduce the effects of past discrimination and can provide objective metrics for business decision-making.

  • Wellness programs and privacy.  Gamifying a wellness program can be a trap for the unwary, especially now as the EEOC is in the final stages of a Notice of Proposed Rule Making on wellness programs.  While I won’t go into specifics here (the rules are subject to change),a gamified wellness program will likely have to adhere to the following rules:
    • May not reveal protected health information (say, in  a leaderboard or other comparative context).
    • May not collect PHI from a health carrier if it isn’t directed to administering a plan and it may require particularized notices to participating employees about the collection and storage of PHI.
    • Individualized PHI will need to be collected according to the HIPAA privacy rule and protected according to the security rule.
    • Must provide reasonable accommodations that allow employees with disabilities to participate in wellness programs and obtain any incentives offered.

Says Vanessa Goodard:

…[A]pplying gamification to workplace wellness programs – while intuitively appealing – is probably not going to get employers any more bang for their buck than the incentives already used (ex. water bottles, t-shirts, or reduced deductibles), and I’d be willing to bet that no employer wants to present the test case in court involving gamification of what might very well be protected health information.

There are a significant number of employment law considerations that must be brought to bear on gamificiation. However, if done thoughtfully, gamification can live up to its promise of bringing new modes of learning and productivity to the workplace.

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