Can I “Chip” Away at my Employees’ Privacy?

Originally published by Drew York.

“Big” Bob Brothers is concerned that his company, Big Brothers Security Systems, is losing out on customers because his salesmen and installation teams are slacking when they are out of the office.  Brothers reads a newspaper article about another company that is putting microchip implants containing radio-frequency identification tags (RFID) into his employees in order to make sure they aren’t doing “off the clock” stuff while on the clock.  Brothers sends a memo to employees explaining that they will all be chipped the next month, and anyone refusing to chip will be terminated.  Can Brothers “big brother” his employees like that?   

 

What are RFID Tags?

RFIDs have been around for decades and are used in a variety of ways.  People most commonly probably recognize them for chipping pets as well as cattle.  They are also used for personal timing devices in marathons or shorter races.  The use of RFID chips in humans is much more recent.  In fact, the U.S. Food and Drug Administration only approved their use in 2004.

Can an Employer Require its Employees to be Chipped?

In the instances where a substantial number of a company’s employees were chipped the employees volunteered.  Several states have enacted laws that prohibit the mandatory implantation of an RFID tag in people.  Even if your state does not prohibit mandatory implantation, an employer should remember that tracking employees through RFID implants could raise a host of privacy concerns that create more problems than solutions.  For example, if an employer gains access to an employee’s health information through a chip that reveals the employee has a mental or physical disability, the employer may be forced to accommodate the employee under federal or state laws.

Are their Alternative Solutions for Big Brothers?

There are a couple of potential solutions.  An employer should again first check its state’s privacy laws.  But assuming there are no legislative restrictions, some courts have held that Big Brothers may track their employees with GPS devices as long as the trackers are placed in company vehicles.  Tracking an employee’s whereabouts through company issued smart phones may yield the same result, but there are different privacy issues at play because an employer would have the ability to monitor an employee during non-working hours.       

Tilting the Scales in Your Favor

Because there are a myriad of unanswered questions raised by employee tracking, employers who wish to track their employees should carefully adopt well thought-out policies that balance their concerns with employees’ potential privacy concerns.  Employers should consider notifying employees of their monitoring policies through employee handbooks.  Employers should also consider who at the company will have access to the monitoring activities, when they will monitor their employees, and how that information will remain confidential.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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