Workers Are Lining Up for Microchip Implants, but Lawyers Say Slow Down

 

Employees at a Wisconsin tech company are volunteering to have microchips implanted into their hands. The chips, equipped with radio-frequency identification technology, will open doors, grant food purchases in the break room, speed up computer log-ins and provide access to copy machines. More than 50 of the company’s 80 employees have opted in to the voluntary program.

But attorneys seem less thrilled about the idea. Private practice labor lawyers brought up issues of worker privacy, data collection policies, data misuse and medical liability, while one general counsel questioned the business goals and costs of the program.

“It’s interesting, but the way I see it, unless there’s a real need in an organization for driving accountability and tracking, it doesn’t make business sense for me as a manager or executive in an organization,” said John Kuo, general counsel of medical device company Varian Medical Systems. “Why not just let your employees wear card keys that have RFID technology?”

The company, called Three Square Market, is rolling out its voluntary program beginning Aug. 1, according to a report by The New York Times. The company has a web page addressing frequently asked questions, including how safe the chip is (the technology has been approved by the U.S. Federal and Drug Administration since 2004), what concerns there are for identity theft (chip data is encrypted) and whether the chip is “trackable” through GPS (it’s not).

But simply because the chip lacks GPS technology does not mean that employees’ locations can’t be “tracked,” said Jackson Lewis principal Joseph Lazzarotti, who helps co-lead the firm’s privacy, e-communication and data security practice. By pairing pieces of RFID data—for example, what time an employee logged into their workstation or a copy machine—with information not belonging to the RFID chip—such as where that employee’s workstation and copy machine are located—a company can draw conclusions about the worker in a way that resembles location tracking.

Lazzarotti said the company also needs to protect how employee funds are stored for food purchases.

“We see breaches all over the place with payment card transactions,” Lazzarotti said. “I’m not ready to say the technology used here is completely secure.” He said there are also state regulations that safeguard the collection and storage of payment information.

L. Julius Turman, who heads the San Francisco office of Constangy, Brooks, Smith & Prophete, brought up medical concerns when discussing the company’s program.

“I take for granted that the medical issue has been resolved, but when you implant something, even something as small as a microchip into our body, you have to make sure there are no medical issues,” Turman said. “Who bears the liability, should there be any risk growing from that?”

Turman said a company can gain a lot from installing new technology into its offices—and in this case, its employees—but it also needs to restrain itself from invading privacy.

“This could prove a very useful tool for efficiency reasons. And it could advance to allow for tracking wage and hour, tracking work, on-duty and off-duty,” Turman said. “But how far do the limitations on monitoring go? Where do we cut it off? An employer has to strike balance between efficiency and intrusiveness.”

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