Welcome
Daily Labor Report®

Forced Worker Microchipping Faces Growing Preemptive Strike

March 19, 2020, 2:28 PM

When it comes to implantable devices in the workplace, one person’s high-tech utopia is another’s sign of the apocalypse.

Indiana state lawmakers, like their counterparts in at least 10 other states, might have had this paradox in mind when they passed legislation aimed at giving workers a choice. Indiana’s HB 1143 bans employers from requiring their workers to have devices implanted into their bodies, such as microchips or RFID tags.

The new law is set to take effect July 1, after Gov. Eric Holcomb (R) signed it on March 11.

The legislation, like similar proposals pending in a handful of states, could be seen as a preemptive strike at a time when implantable technology is starting to gain interest. Sources interviewed for this story weren’t aware of any U.S. workplace requiring it for their employees, although a few companies offer the option to workers.

“It causes you to question: Why is this being done? It’s not something employers are using widely, at least not yet,” said Risa Boerner, attorney and chair of the data security and workplace privacy practice group for Fisher & Phillips LLP in Philadelphia. “There’s certainly a lot of potential benefits to the technology in terms of convenience and security.”

With no employers known to be requiring such implants, it’s unlikely many workplaces will see a direct operational effect from restrictions like those enacted in Indiana, said Boerner and another employment lawyer, Esther G. Lander, of Akin Gump Strauss Hauer & Feld LLP in Washington.

Nevertheless, they noted significant privacy concerns for many workers, not to mention religious objections for others. Employers who hope to reap the potential benefits from implantable technology might have to endure a slow or limited rollout of such devices, Lander said.

Employers are banned from requiring device implants in Arkansas, California, Missouri, Montana, Nevada, New Hampshire, North Dakota, Oklahoma, Utah, and Wisconsin, according to Bloomberg Law data. The language of the bans varies, with some specifying RFID tag implants and others referring broadly to implantable devices. The Montana law specifies that the ban applies to independent contractors as well as employees.

Similar proposals are pending this year in the state legislatures of Iowa and Rhode Island, although both legislative sessions are temporarily suspended due to concerns about the spread of the novel coronavirus. A pair of similar bills also carried over from the 2019 session in Tennessee, where the House version of that proposal failed to pass its committee hearing last year.

‘It Sounds Scary’

Concerns about an invasion of worker privacy are to be expected with this kind of technology, although the privacy threat might be more a matter of perception than reality when it comes to the devices that are currently available, Lander said.

“It’s being implanted in you, so it sounds scary,” she said.

The implants available today are passive RFID tags about the size of a large grain of rice. When implanted into a person’s hand, they allow the person to wave their hand close to a scanner to open a door, log into a computer, or pay for a snack in a company cafeteria.

These devices aren’t equipped for GPS tracking that could allow the hypothetical round-the-clock monitoring some workers might fear, Lander said.

That doesn’t mean future technology might not allow tracking, she added. Either way, she agreed with the sentiment of state lawmakers who don’t want to see it become mandatory for employees.

“Requiring that as a condition of employment would be a bit alarming,” Lander said.

The question of what’s mandatory or voluntary in the workplace isn’t so clear cut, though, according to Ifeoma Ajunwa, a professor and researcher at Cornell University who specializes in ethics related to workplace technology.

The Indiana legislation “is a good first step,” she said, adding that it’s concerning that “the law is predicated on consent.”

“My stance is that consent is not really meaningful in this case because of the American employment landscape, which is employment at will,” giving employers power to persuade workers, Ajunwa said.

Negotiating through a union contract is the best remedy for workers who hope to avoid being pressured into having a device implanted, she said. In lieu of that, state lawmakers can provide somewhat better protection by going beyond the language of Indiana’s new law in various ways, she added.

For example, an Arkansas law that took effect in 2019 bans employers from requiring implants while also blocking employers from asking job applicants during the hiring process whether they will consent to implants. It also requires employers to provide workplace accommodations for workers who refuse device implants.

Mark of the Beast

Biometric privacy concerns go beyond implantable tech, as shown by the abundance of lawsuits filed under Illinois’ Biometric Information Privacy Act since its passage in 2008. That law requires various worker protections whenever an employer collects biometric information such as fingerprints from its employees, as a growing number of workplaces do for timekeeping and security systems.

The Illinois law is one of a kind, though.

“So far no other state has passed anything that comprehensive,” Boerner said. Texas and Washington state have biometric privacy laws, but they don’t allow a private cause of action like the Illinois law, she said.

This raises the question: Why are so many states looking to ban mandatory implants but not addressing broader biometric privacy issues that are common in the workplace, such as fingerprint scans?

Part of the answer lies in the way some Christians read the Bible’s Book of Revelation, Boerner said.

“I think there’s a really interesting history on this,” Boerner said. “There’s a group that thinks this may be the mark of the beast.”

The Book of Revelation’s apocalyptic prediction suggests a world leader—the Antichrist—will arise and require people to accept a marking on their foreheads or hands that allows them to conduct commerce. Those who accept this “mark of the beast” face condemnation, according to this religious teaching.

The same religious objection to biometric technology was enough for a West Virginia coal miner to win a federal discrimination lawsuit in 2015, Boerner noted.

The miner in that case sued after his employer, CONSOL Energy, wouldn’t accommodate his religious objections to use a handprint scanner for clocking in and out. He retired rather than use the scanner.

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.