United States: Wave Of The Future Or A Step Too Far? Wisconsin Company Offers Employees Microchip Implants, Employment Issues Abound

When wireless is perfectly applied the whole earth will be converted into a huge brain, which in fact it is, all things being particles of a real and rhythmic whole. We shall be able to communicate with one another instantly, irrespective of distance. . . . and the instruments through which we shall be able to do his will be amazingly simple compared with our present telephone. A man will be able to carry one in his vest pocket.

–Nikola Tesla, 1926

While we may now take Tesla's connected world for granted, one cannot help but wonder what readers thought of his predictions in 1926 when he made the above statements in a magazine interview. It remains to be seen whether a similar pattern of skepticism, realization, and acceptance will eventually emerge regarding news that a vending machine company is offering its employees the opportunity to have microchips embedded in their hands to allow more convenient access to facilities, computers, and financial accounts.

The Wisconsin-based employer is reportedly the first in the United States to offer microchips (at a cost to the employer of $300 each) to employees on a voluntary basis. The microchip, roughly the size of a grain of rice, would be inserted into an employee's hand between the thumb and forefinger, and could be used instead of a key to access buildings, log onto computers or printers, and even pay for goods in the company's break room. It is not unlike fingerprint or other biometric technology that is becoming more widely used. In this case, however, the pertinent information is stored on the embedded microchip.

The company noted that in the future, the chip may also be able to store medical information or be used for transactions outside of the company. The chip's technology is not, however, currently able to use GPS to track employees' whereabouts.

Employers considering whether to implement such emerging technology may want to carefully assess whether the convenience outweighs the risks. Among the legal issues are the following:

Personal Privacy

While the company making headlines has stated that it will not use the technology to track its employees' whereabouts (and the technology cannot currently support GPS monitoring), embedded microchips like this could create an electronic trail of the employee's whereabouts whenever the employee is scanned to access secured locations. 

Depending on where access points are installed, an employer could gain useful information, such as how long an employee spent in the break room, in the same vicinity as another employee who was allegedly harassed, or where material went missing. Further, having a record of frequent "check-ins" throughout the day as the employee accesses buildings, printers, computers, vehicles, etc. might aid in verifying time records for payroll purposes or compliance with delivery schedules and other customer expectations. This technology is already available to employers through access cards, login PINs, and other devices. The embedded chip would be another technology to use for that purpose, and it would be more difficult to trick the system with "buddy punches" and other surreptitious behavior with microchip technology. On the other hand, an employer could also theoretically confirm how long an employee spent in the restroom, at a union meeting, or complaining to human resources. 

If embedded chips ever advance to the point of supporting GPS, a current body of case law regarding non-embedded GPS devices (like phones and devices installed on company vehicles) offers insights into potential legal risks. Companies use these technologies to track the whereabouts of employees, but that also gives companies information that could form the basis of a discrimination claim. For example, a company may learn that an employee is regularly at a medical clinic, which the employee might use to claim disability discrimination. Or, in Wisconsin where state law protects against discrimination based on the use or non-use of lawful products, the employer might learn that the employee spends a lot of off-duty time at the neighborhood bar, which could lead to a claim that the employee was discriminated against for using legal products while not on duty.

In addition, requiring GPS tracking of employees' whereabouts is a mandatory subject of bargaining for unionized employees. Even for non-union employees, courts have found that employers go too far if they track employees' whereabouts in places where employees would have a reasonable expectation of privacy (like their homes). Public employers face even greater risks in using GPS technology because courts have found that GPS technology may qualify as a search under the Fourth Amendment.

Data Privacy

Information from the chip (e.g., banking information and medical information) has value and could be the target of theft. Just as personal information could be hacked from other company databases and infrastructure, hacking may be a possibility with this new technology. Because the chip is provided by the employer, would the employer be liable for damages resulting from the misappropriation of stolen information? If an employer were negligent in implementing security protocols on the microchips, there could be litigation over the employer's liability.

Workers' Compensation

If an employee has a medical reaction from the implant or the procedure of implanting the chip (for example, developing an infection), there is a possibility that the medical reaction could give rise to a workers' compensation claim because the chip was provided by the employer for work-related reasons.

Medical and Religious Accommodation

The employer in question here is not requiring employees to embed the chips, but requiring employees to do so would be difficult. Employees would likely have a right to opt out of the requirement based on medical or religious objections. It is not unlike requiring employees to get an annual flu vaccine. Some employees are medically unable and must be granted a medical accommodation under the Americans with Disabilities Act and applicable state laws (absent an undue hardship to the employer). Others may object on religious grounds and therefore qualify for accommodations on that basis.  At least one court has supported an employee's right to decline on religious grounds far less invasive biometric access technology.

A Look Into the Future

While the microchips currently in use appear to serve limited purposes, it is not farfetched that the technology will continue to develop and allow new uses. Employees may be comfortable with the current use, but not with future uses. Clear communication with employees as to the capabilities and uses of the chip would be essential to minimizing legal risk.

Even more practically, the technology of the chip itself may become outdated or employees might leave their employment with the company and the company would need to determine what to do with the chip already embedded into the employee. This could create medical challenges in removing the chip or controversies with the employee over who has rights to the chip itself or is obligated to pay for its removal.

While the company at issue here has not made implanting a microchip a condition of employment, social, economic, and practical influences could leave employees with little alternative. Just like the convenience of direct deposit has made paper payroll checks virtually obsolete, so too the convenience of chip technology may render physical keys, identification badges, and similar access control measures a thing of the past. Why risk losing or forgetting your identification badge when you can guarantee the necessary data is with you at all times? Financially, it seems likely that an employer could offer an incentive to employees who make use of the chip technology much like auto insurance companies offer premium reductions to those who permit tracking of their driving habits. Many employers already offer shift premiums, are chip premiums on the horizon?

Ultimately, while this developing technology may certainly provide some added convenience and may not be all that significant a departure from our society's current reliance on mobile devices, embedding a microchip into an employee's body takes the invasiveness of the technology and the legal ramifications one step further and requires a thoughtful weighing of the risks versus the benefits.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.