Subcutaneous RFID Tag Implants - "Beam Me Up, Scotty"

David Keene, II
July 10, 2008 — 766 views  

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Radio frequency identification (RFID) tags sound like a something out of science fiction.  A tag, about the size of a piece of rice, can be injected under a human being’s skin (“subcutaneous insertion”).  A scanner can be used to “read” the tag and learn information about the bearer.  Information contained on the tag can include address and medical history, and its availability could literally be a lifesaver, if used to identify a lost child or retrieve the medical history of an unconscious person.  Tags can also be used for less important tasks, too:  An anecdotal search of the Internet found that patrons in certain Rotterdam and Barcelona bars have had RFID tags placed under their skin so they can enter VIP rooms and run tabs. 

But what about requiring that employees be tagged?  In 2004, the Mexican Attorney General’s Office required that 18 senior staff members be tagged to prevent unauthorized individuals access to certain areas.  So far, this issue has not been of large concern in the United States, but that is starting to change as science “fiction” becomes science “fact.”

The States Respond to RFID
Four states—California, Missouri, North Dakota, and Wisconsin—have all enacted legislation that prohibits compulsory implantation of an RFID tag.

North Dakota and Wisconsin’s prohibitions are extremely broad and do not specifically address employment—they simply prohibit the implantation of a tag.  These statutes fail to consider situations where implantation may be promising, such as in a mentally challenged or demented person who might get lost or try to leave home.  Also, neither contains definitions of the terms used in the statutes.  Missouri’s statute avoids North Dakota and Wisconsin’s failures by limiting the applicability of the statute solely to prohibiting employers from requiring the implantation of tags.  It also defines “personal identification microchip technology.”

California’s statute, it almost goes without saying, is the most comprehensive of the four.  It prohibits the requiring, coercing or compelling of the insertion of a subcutaneous RFID tag, provides a three (3) year statute of limitations for bringing suit, and provides fifteen examples of “personal information”, including address (physical and email), date of birth, financial data, religion, ethnicity, “biometric identifier”, and, interestingly, photograph.

There is no federal law addressing subcutaneous RFID tag insertion, but for Food and Drug Administration regulations permitting such insertion.

Legal and Practical Concerns
As a human resources expert, how do you address this issue?  What if your company’s president directs you to implement a tagging policy?  If you’re in one of the four states discussed here, you cannot compel anyone to submit to implantation.  But what about, in the case of an employee’s refusal, gentle “persuasion” or coercion?  Only California’s statute prohibits non-physical force and prohibits any adverse job action for refusal to submit to implantation.  That the other three statutes fail to directly address this issue demonstrates that, despite best intentions, this is an intricate matter that requires more than a one or two sentence statute prohibiting RFID tagging.   

If you can and do decide to move forward with a policy, for what purpose will the RFID be used?  Will it be used instead of a timecard?  How about for tracking people’s locations?  Can you monitor break time?  These are all issues human resources managers will have to address.

Remember that the more information you collect and retain, the more likely it is that demands for that information will arise.  As examples, what if a spouse in a divorce matter seeks to prove that their spouse wasn’t at work at the time they claim, by subpoenaing your company’s RFID tag tracking reports?  What if a subordinate alleges sexual harassment by a supervisor, and as part of discovery demands RFID tagging information showing the alleged harasser’s and the alleged victim’s locations throughout your plant for the last three years?  Obviously, maintaining information can be a double-edge sword.

Law versus Technology
Despite these states’ attempts to get protect individual rights, technology continues to outpace and outmaneuver the law.  For example, none of the statutes discusses unemployment compensation for refusal to submit to implantation.  Would refusing and resigning qualify as “necessary and compelling cause”?  Would a termination based on a refusal amount to “willful misconduct”?  What about workers’ compensation, if an employee has an allergic reaction?  What about federal and state discrimination and harassment laws?

From a technological perspective, what about an RFID tag that floats on your eyeball like a contact lens—you wear it, and it’s not a “subcutaneous insertion.”  What about an RFID tag that is sprayed into one’s hair?  Or is painted onto your nails?  While such technology may not be here now, there is cause to believe it will arrive. 

Conclusion
Unfortunately, neither I nor anyone else has exact answers to these issues.  If you are in California, Missouri, North Dakota, and Wisconsin, congratulations—for you these issues are (largely) solved.  For those of us working and practicing in the other 46 states, we have a host of issues—legal, technological, and moral—to untangle.  The law just begins to address the host of issues that can, and will, arise.

David Keene, II

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David Keene, an associate in Baker Donelson's Tri-Cities office, concentrates his practice in the area of labor and employment law. Mr. Keene has experience in a multitude of labor and employment areas including negotiating collective bargaining agreements for both private and public sector employers; representing employers in grievance and issue arbitrations; representing employers in all matters, including elections and unfair labor practices, before the National Labor Relations Board and state labor boards; helping clients maintain union-free workforces; handling unemployment claims from initial applications for benefits through court appeals; counseling clients on a multitude of federal employment laws, including the ADA, FMLA, ADEA, and FLSA; litigating employment discrimination claims; and representing individuals against unions. Mr. Keene has been published in The Labor Lawyer, Labor Law Journal, and numerous other publications, and has taught seminars on a wide variety of labor and employment topics.