U.S. employer now experimenting with microchips implanted in employees
By
Jim Reidy
This is an update to an article originally published by Business NH Magazine on June 23, 2017. Read the original story here.
On average every adult has at least 27 discrete passwords or access codes they need to log on to their computer, open a door, make an online purchase, watch a movie etc. For security purposes we are often prompted to change those passwords and make them even more complicated or obscure, making them more difficult for others to intercept but those passwords often become jumbled. Gone are the days when you could use your birthday, social security number or “password” as your password and storing all of your passwords on your computer or smartphone is no longer recommended. A few months ago, a Swedish company, Biohax International, in connection with the company’s move to a new high tech building, announced that it was experimenting with inserting microchips in its employees to relieve the need for PINs, passcodes, cards etc. That announcement sent shockwaves through workplaces around the world as many think this will become common place in the near future. This issue has now reached our shores. Earlier this week a Wisconsin company announced that it, too, was offering employees the ease of access with imbedded microchips. What’s next, jetpacks, cloning, self-aware robot assistants or time travel? [Insert foreboding sci-fi movie music here.]
In recent years employers have tried a number of methods to permit employees access to the workplace, computer systems, office equipment and timekeeping systems. Those innovations have been met with mixed reviews. Many employees have been reluctant to provide fingerprints fearing they could be used by the government to track them and by hackers to steal their identity. Likewise, retinal scans have caused some employees to recoil because of the intimacy or inconvenience of the exercise (one employee said it felt like he was either a secret agent or a creep looking through a peep hole). Biometrics on timeclocks was popular until they collided with cold and flu season. We have all been frustrated by a lost pass card, key or fob. Who hasn’t had a panicked moment trying to get into a secure parking garage, office or restroom when a PIN or passcode is forgotten but are we ready to have a chip implanted in us to avoid delay or other inconveniences?
In the case of Biohax, the Company’s new offices will be located in a technology complex housing as many as 100 companies. Aptly named the Epicenter, many see this concept at the forefront of office innovation. Employees of the companies at the Epicenter were introduced to the concept as a part of the unveiling of their new offices. The complex’s Chief Development Officer took the first step into this brave new world by having the microchip, which is the size if a grain of rice, implanted in his hand, between his thumb and index finger. This was done live, onstage, at the opening ceremony for the new building. Apparently a group photo of executives in hardhats with shovels breaking ground, a politician smashing a bottle on the bow of a ship or someone simply cutting a ribbon wasn’t flashy enough.
The publicized benefits of the microchip are access to doors, photocopiers and café purchases. Yes, with just a wave of the hand like a simple greeting in the hallway or mystical wave of a wand doors open, equipment is accessed and Twinkies are within your reach. Wait, but what if you are just waving to a co-worker or guest and you don’t need access to the copier, restroom or snack machine, yet that gesture still opened the portal… …would that cause the workplace to be less cordial with employees keeping their arms by their sides, hands in pockets and exchanging only grunts as they pass by for fear of triggering an unintended mechanical response.
Some employees at the Epicenter complex welcomed the convenience and the innovation of the chip. Surprisingly those were a few older employees. Perhaps they simply couldn’t remember their passwords and thought why fight the change. A few said that with smartphones and wearables (e.g. Fitbit, Apple Watch etc.) many employees were already using available technology to do everything from accessing the gym, paying tolls, or buying a skim latte. Others objected to the still optional chipping as in invasion of privacy, not only of the person’s hand but because of the potential tracking of the employee by the company and others.
The Wisconsin company, Three Square Market, has over 50 employees and reportedly many have already expressed interest in having the RFID (Radio-Frequency Identification Chip) implanted. They see benefits beyond unlocking doors, logging on the computers and buying snacks. Company representatives already envision using the chip to help answer phones, share business cards, and store/transmit personal/health information. Down the road they predict this “chipping” will be a wide-spread practice as it will be part of passports, drivers’ licenses, public transit pass cards and even ETM/credit cards. For now, Three Market Square has assured employees that the chip will not have GPS tracking capabilities and employees can remove the chip anytime they want.
The obvious elephant in the room (apart from those who believe this implant could be the mark of the beast as foretold in the Bible’s Book of Revelation — we leave those determinations to religious scholars and conspiracy theorists) is the potential invasion of employee privacy concerns. The implanting of a device in an employee’s body not only causes many to recoil from the thought of a needle or scalpel and invokes images from futuristic horror movies or orthodox religious warnings about body modification, but it also raises legitimate and reasonable concerns about the information this technology can obtain and reveal about the host. Federal and state privacy laws haven’t caught up technology, at least not RFID technology. RFID technology is often referred to as a next-generation bar code. A simple RFID tag consists of a microchip and antenna that, when stimulated by a remote reader, sends back information via radio waves. The use of RFID has raised privacy concerns in some states, particularly with regard to linking personal information with RFID tags. While many states have proposed legislation or adopted laws dealing with electronic surveillance or monitoring and some have studied concerns about misused RFID commercial applications, only a few states to date have addressed the potential for RFID use in the workplace. Missouri is the only state to ban the use of RFID, and specifically devices implanted in employees. The New Hampshire legislature has looked at this issue but so far only passed a law, N.H. Rev. Stat. 189:68, dealing with the protection of student privacy. There are state laws that deal with RFID chips in drivers licenses and other devices as well as GPS and other technology used to track equipment and criminal offenders but there are generally no laws that prohibit the inserting of microchips in employees, assuming the employee volunteers or consents to the bodily intrusion. It is only a matter of time before those bills are introduced.
The privacy concerns raised in objection to wearables and RFIDs, beyond the obvious because of the attachment to or insertion in the body comes from the possibility of tracking individuals’ health and wellness, monitoring their location and their productivity. Some state and federal laws are implicated with the gathering and uses or misuses of that information. They include the American’s with Disabilities Act (ADA) and state disability discrimination laws, which include the need to keep an employee’s medical record confidential and prohibit discrimination based on physical or mental impairments, the Genetic Information Notification Act ( GINA) which protects employees from discrimination based on family genetic information, the National Labor Relations Act (NLRA) which prohibits spying or monitoring the activities of employees who may be engaged in union organizing or other protected activities, and the Fair Labor Standards Act (FLSA) and state wage laws, which require the payment of wages for all work activity for the benefit of the employer, no matter how productive. There are also data breach laws that require those who collect and maintain data to protect it from unauthorized disclosure and notification to impacted individuals when their data may have been accessed by others. There are also common law privacy rights that protect employees in ways and areas in which they have a reasonable expectation of privacy but in the case where an employee consents to monitoring it are hard to argue privacy right unless the employer has exceeded its authority. Again, state legislatures haven’t caught up yet. It’s just a matter of time. In the meantime, for now employers are free to suggest and employees are free to accept or reject the implanting of microchips in their bodies. One recommendation: if your employer gives you the option of having a microchip surgically tucked under your skin to gain access to your workplace, you should balance that convenience against your employer, and potentially others, knowing all about you, where you are, what you do and other details you might not otherwise share. Somehow remembering your mother’s maiden name, the make of your first car, the name of your childhood family pet and other access code prompts or reminders are not so bothersome.
In short, yes, the end is near. Soon we won’t need keys, pass cards or to remember passwords. It won’t be long before more companies look seriously at the benefits of “chipping” their employees. In the meantime, you may want to take this opportunity to update your workplace policies to deal with self-aware robots, zombies and flying monkeys as those could be coming to a workplace near you.
Sorry, I have to go, my hand is blinking indicating I have an incoming call or it’s time to report to central processing ….
Attorney Jim Reidy is the chair of Sheehan Phinney’s Labor and Employment group and frequent contributor on workplace legal issues.