Implanted Microchips: The (Dystopian?) Future of Employee Monitoring

Category: Blog Posts
Date: Jul 12, 2019 09:31 AM

" I know I’ve made some very poor decisions recently, but I can give you my complete assurance that my work will be back to normal."  HAL 9000 – 2001 A Space Odyssey

Microchips for dogs and cats is nothing new.  Our fluffy friends have been receiving microchips for more than 30 years, resulting in happy reunifications of owners and lost pets.  The latest trend in microchipping moves beyond cats and dogs and on to the workplace—not because employees are getting lost but as a means to assess productivity and track efficiency, among other things.

In January 2015, the Swedish conglomerate Epicenter started offering employees implanted microchips in their hands that would permit them to open doors, log on to computers, or buy food and drinks. The Wisconsin company Three Square Market began voluntarily chipping employees in 2017, with roughly a third of the employees chipped by August 2018.

Since the United States has a history of striving to protect individual privacy rights, do these employee microchips have a viable future in the workplace?  Twenty states currently have laws concerning the use of microchips but only a handful of those laws directly address the employment context.  California Civil Code section 52.7 expressly prohibits a person, which includes business entities, from “requiring, coercing, or compelling” an individual to undergo subcutaneous implanting of an identification device.  The statute further forbids “the conditioning of any private or public benefit or care on consent to implantation, including employment, promotion, or other employment benefit.”  California law does not stop employers from asking employees to consent to microchipping, but the law also does not establish any particular guidelines for microchipping employees.

In 2019, Arkansas introduced legislation that specifically addresses the use of microchips in the employment context by outlining legal parameters for microchipping.  The legislation seeks to strike a balance between employee privacy and the value of microchips to employers.  The employee must give written consent to implanting the microchip and the employer must disclose all the information that it collects, among other requirements.  Importantly, the microchip cannot be a condition of employment.  The employer also must permit and pay for removal of the microchip upon the employee’s request.

While employees may recoil at the thought of being monitored through microchips, employers could reap notable benefits, such as assessing workplace efficiency and effectiveness.  Employers often use card swipe data in a variety of matters, such as monitoring employee entry and exit times from buildings.  This information often assists employers in disciplinary matters. Employee access card information, however, can be unreliable.  Employees easily could find ways to enter buildings without swiping a card, or could enter or exit with a group of people, without having to swipe their own card.  The microchip, however, offers greater and more consistent data collection.

With the rise of microchipping employees in Europe and advancements in technology, other states may follow Arkansas’ lead by creating specific employment laws to govern employee microchipping.  For the 2019/2020 California legislative term, the only microchip legislation introduced so far relates to dogs, cats and horses.  Despite California having one of the stronger laws on microchipping humans, future legislation may be likely if the employee microchip trend gains more interest from employers.  Without legal parameters in place, employers could develop their own policies and procedures for microchipping but should exercise caution to avoid violating existing law, as well as the appearance of coercion or retaliation.

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