During carb-laden lunches in the IBM cafeteria over 10 years ago, a master inventor and his colleagues decided they were eating too much. From this Pavlovian inspiration, Mike Paolini submitted a patent for a technology that coordinates an automatic wellness rebate program.

"As engineers, we like to be rewarded in what we do right," explains Paolini. He says that the technology builds on a point-incentive system that encourages employees to buy and eat healthy foods. The patent details a micropayment network to buy food, which runs employees' purchases against their health records. If the employee buys apples instead of Tootsie Rolls, then the system communicates with the employer's payroll server to deliver a reward.

"I wondered if there was a way to change our behavior, because right now we're fighting marketing from restaurants, ads and your evolutionary desire for fat and salt ... To be healthy, we really need to change our behavior pattern and that was the thought [behind this technology]," Paolini says.

The technology adjusts the desired calories depending on the individual's metabolism or their diet and health needs. This means wellness programs could target incentives within specific disease management groups, such as monitoring sugar for diabetic employees.

"You take the food pyramid and make inherent rules for everybody, then target it toward an individual, and in a way that helps them change their behavior for the better," he adds.

Paolini, who works as a senior staff technical member for IBM, worked on the idea in his spare time. IBM applied for the patent in 2001 and received patent approval late last year.

The source for determining what food is healthy and what is not can be input from any directory, whether that is a database from the FDA, an insurance company or some other outside source.

"There is no specification of what is healthy," says Paolini, adding that an individual could subscribe to any database that exists. Individuals could follow a gluten-free diet or a kosher diet, for example.

"The potential is there, depending on the incentives. We often have people who sign up for a health program get a rebate off of their insurance," he explains. Other plans offer discounts to employees who participate in walking programs, smoking cessation programs or work with personal trainers based on an honor system.

"Right now it's generic, but there's no reason that it couldn't be personalized," he says. As a firm believer that people should pay for what they receive, Paolini strongly supports reduced premiums for employees who eat healthy food, exercise and don't smoke. With patents like the one IBM submitted, employers could reward their workers instantaneously for specific well-being activities.


Gaming gains in popularity

With the ability to monitor health decisions and behaviors in real time, wellness programs will gain a strong backbone. Gaming has been gaining popularity among employers as the technology steadily becomes more sophisticated. Gaming also uses a point system for healthy decisions and often uses friendly competition to spur engagement.

"Games take a very complicated behavior and make it easy to understand," explains Adam Wootton, director of social media and games, Towers Watson. He compares the practice to a frequent flier program model.

If the ROI for wellness programs is high now - IBM estimates that for every $1 they spend on their employee wellness program, they get $3 back in health care cost reductions and productivity gains - imagine the possibilities if employers could immediately reward people's wellness activities for every possible health dimension.

This may seem far-fetched, but many similar technologies to the IBM patent already exist in the consumer marketplace.

"There are some things like the Body Bugg and Fit Bit that are out in the consumer market. They aren't really being used for employee incentives yet, but they are starting to be pulled into wellness platforms. So those [technology applications] aren't that far out there," says Jennifer Benz, founder, Benz Communications. "There's a lot of interesting things going on with ... recording your information, being able to understand your own data and do something with it as an individual."

Body Media, Fit Bit and Body Bugg are all big names on the fitness gadget circuit and often use Blue-tooth technology to monitor an individual's activity level, sleeping habits and calories burned, and send data to people's smartphone.

Paolini points out that these technologies don't factor in healthy eating standards, or dietary and allergy restrictions, and many have you enter diet information manually online. "But the basic elements are there, and a lot of people have lost a lot of weight using [this technology,]" he says.

Companies like ShapeUp and Limeade can be reliant on self-reported data, but also use tracking health data and social support to engage employees with their employer's wellness program.

Benz explains that Limeade, for example, provides access to programs and devices like Runkeeper and Nike+, and uses gaming principles to encourage people to compete. "Any source of data that is out there can be sent into an employer's wellness program," explains Benz.

These programs are basically personalized trainers or coaches that are available to the consumer on demand and on every device they have access to. For example, you can have your health information programmed on a smartphone or device and transfer it to a treadmill, which could tailor your workout.


Make it useful now

The current challenge, according to Benz, is how consumers and employers can make technology useful now. That entails delivering specific recommendations for individuals and making sure they receive them.

"For a lot of employers, it's not about the shiniest technology that's out there, it's about what the majority of the workforce can use. It's more about getting mobile Internet devices in the hands of everyone who needs them," she says.

Smartphones have become miniature computers with the potential to reach a larger employee base than expensive, traditional devices with Internet. They also have inherent features that could bring benefits communication and engagement to an entirely new level.

Many apps and mobile websites have taken advantage of geolocation in smart phones that allow employers to upload information and data onto employees' mobile phones. This could direct employees to the nearest in-network health carriers by using their phones' GPS capabilities. This feature could also enhance an employee discount program by showing nearby businesses that have discounts.

"All of this takes benefits that were previously not valued by the employee because they didn't know about them or didn't have access [and makes them easily accessible and useful]," explains Wootton.

Many experts forecast that employers who harness the power of social media will create a strong culture of health in their workforce.

It will be interesting to see how "social media grows up around all of this, because I think there is a great opportunity in sharing your results in almost a support group," says Paolini.

Employers can also use social media participation as a way to advertise employee testimonials, another great way to communicate messages about benefits. Having employees share their stories builds up a perception that healthy lifestyles are the norm in the company and that a culture of health pervades.

"Social technology is the way we share our data and celebrate the successes of people and use that to motivate others through friendly competition," explains Wootton. "You can motivate people in Boston in almost anything by telling them that New York is doing it better."

Still, concern remains that sharing health data over social media and increased transparency in wellness programs have Orwellian consequences.

Privacy concerns are "a moving target," suggests Benz. As people get used to new technology, it will always move forward. For instance, sharing personal information and family photographs online is now considered acceptable, whereas in the past it would have seemed unthinkable.

As this technology becomes more mainstream, Benz says, it won't seem strange for an employer to require an employee to undergo genetic testing to understand their full health history and get the lowest price on their health coverage.

Right now, employers can't use that information or the results of that process, but just as they can require online health assessments and biometric screenings for lower medical plan rates, they could require genetic testing some day.

Before this day comes, however, employers need to concentrate on keeping employees healthy and engaged with their benefits the oldfashioned way.

"There's a lot of cool technology out there, but you can't use it if you're not doing a baseline of having good programs in place and educating people as well," says Benz.

She suggests ensuring that all health and wellness information is on the Internet, not behind a firewall. She emphasizes that employers should communicate around their benefits and wellness initiatives all year long.

"Focus on the user interface. The expectations of consumers now are very high," adds Wootton. Apple products, for example, don't even require owner's manuals. Also, consider requiring a single password for users. In general, a user who has never seen the technology before should be able to get it right away, he says.


Good and bad news for your social media policy

By Denise M. Keyser and Mary Cate Gordon

The National Labor Relations Board recently issued a second report on social media cases. The NLRB continues to refine its analysis of the two most common issues presented to it in social media cases: whether the employer's policy itself is overbroad and thus violates employees' right to engage in concerted and protected activity under Section 7 of the National Labor Relations Act; and whether the employee action at issue is truly concerted and protected by the NLRA.

First, the (relatively) good news: Consistent with established case law, individual griping is insufficient to invoke NLRA protection. Thus, for example, a Facebook posting of a purely individual complaint, made with no intention to induce co-workers into group action and not resulting from a group discussion of terms and conditions of employment, is not a protected or concerted activity. Online expressions of personal anger with co-workers or an employer, made solely on the posting employee's own behalf and not involving the sharing of common employee concerns, are not protected, concerted activity.

Next, the bad news: the NLRB continues to view as impermissibly overbroad policies that generally prohibit "disparaging" or "inappropriate" comments, "disrespectful" conduct or the disclosure of "sensitive" or "confidential" matters. Only policies that provide specific examples of prohibited conduct will be approved. For example, a policy that proscribes the use of social media postings that are vulgar, obscene, threatening or intimidating, or which violate other specific employer policies, will be lawful because the prohibitions are sufficiently detailed. A policy that requires compliance with securities regulations and other laws prohibiting the unlawful use or disclosure of confidential or proprietary information is lawful, because contextual limitations within the policy adequately define the prohibited conduct.

Denise M. Keyser is a partner and Mary Cate Gordon is an associate in the law firm Ballard Spahr LLP. They can be reached at keyserd@ballardspahr.com and gordonmc@ballardspahr.com, respectively.

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