Talk about a headline right out of the future! Indeed, some business owners’ hopes of truly tracking their employees round-the-clock may have to be put on hold after Indiana became the latest state to ban employers from implanting tracking devices into their employees.
Slated to take effect July 1, the bill “prohibits employers from requiring employees to permit implantation of a device into their bodies as a condition of employment. It also prohibits employers from discriminating against non-consenting employees.” Under the statute, a device is defined as “any acoustic, optical, mechanical, electronic, medical, or molecular device” and covers devices that can be injected, ingested, inhaled, or otherwise “incorporate[d]…in some other manner.” Similar laws have been enacted in Arkansas, California, Missouri, Montana, Nevada, New Hampshire, North Dakota, Oklahoma, Utah, and Wisconsin. In addition, similar legislation is currently pending in Iowa, Rhode Island, and Tennessee.
To be clear, no states currently require such devices to be implanted. Rather, this is a case of states, which have notoriously sluggish legislature, trying to outpace the lightning-quick speed of technological advances. Commenting on the move, Susan Kline, partner at Faegre Drinker, notes “it’s a pre-emptive strike. It sends a signal of ‘don’t even think about it.’ Why? First, because it’s invasive. Then there are the ramifications in terms of lack of control over what data is collected, and how it is used, and how device mandates put employees in the position of feeling pressured or at risk of retaliation.”
Have employers even shown interest in the technology? Well, turns out, there has been much chatter about it especially with folks increasingly working at home due to Covid-19 and business owners looking more closely at employee-monitoring technologies. Specifically, employers have expressed a desire to track employee’s physical location, monitor productivity, and even track social interactions for pandemic contact tracing. When it comes to actual microchips or other implanted technologies, supporters note that there are benefits. Benefits would be small, convenient, and could even potentially improve security by allowing workers to forgo key cards in favor of waving their arm across a scanner to enter doors, log into applications, or even pay for lunch! Further, the device makers themselves note that their technology isn’t yet capable of round-the-clock monitoring or other more invasive tracking but have warned that putting roadblocks up before the technology has even reached its full capacity could significantly stifle its growth and development.
However, those who oppose the technology warn that it could inadvertently collect data that violates the Americans with Disabilities Act (ADA) or other sensitive data. Further, there are several issues surrounding the use of the technology, including questions about who owns the device, what to do if someone leaves the company, and how extraction procedures could be enforced.
For now, Indiana lawmakers have left room for employees to voluntarily sign up to get a microchip, meaning that it would be up to employers to sell it to their workers as a perk of the job and the wave of the future. However, before companies dive into making this technology available, they’ll want to be sure that they have the policies in place and of course written into their trusty employee handbook to ensure that the technology is being appropriately described and that workers fully understand the scope of what can and can’t be tracked and how the technology and data will be managed before they sign up to participate. Would you consider microchipping your employees? Do you view it as the wave of the future or a sci-fi horror story in the making?
