Case of good and bad news when workers get microchipped
The microchips are the size of a grain of rice. The syringe slides in between the thumb and index finger of the recipient. Then, with a click, a microchip is injected into the hand.
The microchips function as swipe cards: to open doors, operate printers or buy smoothies with a wave of the hand.
The microchips are similar to those used for dogs or tracking courier deliveries. They use nearfield communication technology, the same as in paywave credit cards or mobile payments.
In addition to their convenient uses, microchips could also be used to tell the employer what time you come to work, what time you leave, when you take toilet breaks and for how long. The microchips could even gather data while you’re not at work, telling your employer where you go and what you do in your personal time.
How do we as a society get the benefits of this technology without intruding into areas that each individual is entitled to keep private? This is the challenge.
It is unlikely that an employer could force its employees to be microchipped. This would go beyond the level of control that an employer has over an employee.
While employees must follow lawful and reasonable instructions, a directive to get a microchip would certainly not be accepted as lawful and reasonable in New Zealand in 2017. But if an employer made microchipping a term of an employment contract that prospective employees had to agree to, it would be a different story.
The Bill of Rights Act protects the right to refuse to undergo medical treatment. However, while it is conceivable that medical data could be collected via the microchip, it does not combat a disease or disorder and it would be a stretch to classify the microchips as ‘‘medical treatment’’.
The Privacy Act would provide some protection. The act prevents information from being collected by means that are unlawful, unfair or unreasonably intrude upon the individual’s personal affairs.
Getting a microchip would be intrusive; however, if you agreed to getting microchipped in your contract your consent overrides this. Even so, under the act employees could require their employer to give them access to personal information collected from microchips.
The employer would be prohibited from using the information for a purpose other than the one for which it was collected and there would be significant restrictions on the employer sharing the information with anyone else. They would also be required to have reasonable safeguards against hackers.
Employees should be aware that the data from microchips could be used to their detriment, such as for disciplinary action.
In a recent Employment Relations Authority decision, a manager suspected an employee of abusing the flexibility his employer allowed him. The manager decided to secretly follow the employee for a day, recording his activities and the times.
Later that day the employee was told to fill in a call sheet and return it after the weekend, which he did. Needless to say the call sheet did not match the manager’s observations. The manager asked the employee to confirm the call sheets were ‘‘true and correct’’.
The employee was then given the manager’s list of times and activities recorded during the surveillance and asked him to explain four discrepancies. The employee was issued with a written warning for dishonesty.
The authority decided that a better approach would have been to make inquiries on the day the suspicions were aroused. The manager could have checked what the employee said against other staff he worked with that day.
The authority concluded that the company did not sufficiently investigate the allegations, raise its concerns with the employee, or give him a reasonable opportunity to respond to those concerns. The company was ordered to treat the employee as never having received the warning, and pay him $7500 compensation for distress.
It is likely that before it became common to microchip employees, legislation dealing with the new technology would be enacted.
After all, allowing your body to be monitored 24/7 would be a big price to pay for the convenience of not using a swipe card.
Peter Cullen is a partner at Cullen – the Employment Law Firm. peter@cullenlaw.co.nz.