The idea of mandatory “microchipping” — the practice of employers requiring employees to have a small computer chip inserted beneath the skin — triggers a high score on virtually any cringe meter.  According to a 2007 study conducted jointly by Littler Mendelson and the Ponemon Institute (“Workplace Survey on the Privacy Age Gap”) more than 90% of respondents, regardless of age, responded that mandatory microchipping by their employer would constitute a privacy violation. 

Mirroring this sentiment, in early September, the California Legislature sent to Governor Schwarzenegger for signature a bill which would prohibit any person from requiring, coercing or compelling “any other individual to undergo the subcutaneous implanting of an identification device.” [UPDATE:  Governor Schwarzenneger signed the bill into law].  An “identification device” is defined as one capable of transmitting personal information by radio frequency (RFID) or other means. 

The only surprise about this bill is that California — the state most protective of individual privacy — is not the first to ban mandatory microchipping legislatively.  North Dakota and Wisconsin grabbed that honor, passing prohibitions on mandatory microchipping in April and May 2006, respectively.  Legislatures in seventeen other states — including Georgia, Michigan and New Jersey — are considering similar laws. 

From the employer’s perspective, these bills are, in a sense, irrelevant.  After all, what employer would dare risk the employee and public relations disaster of forcing employees to accept a microchip?

The more challenging question for employers is when, if ever, should an employer offer microchipping as part of a purely voluntary program.  Before answering that question, it is important to understand that the chip itself contains no personal information.  Instead, the chip contains an encrypted identification number which is linked to a database, such as medical records stored at a hospital or for a health care provider.  A signal emitted by the device transmits the number which then is used to access information corresponding to the person in whom the chip has been implanted.

Employees who might consider, and benefit from, voluntary implantation include:

• Employees with a medical condition, such as epilepsy or diabetes, that could render them unconscious and in need of emergency medical attention;
• Employees who are at a heightened risk of significant memory loss, such as those with Alzheimer’s disease, who might wander off-site;
• Employees, such as commercial pilots, miners and oil rig workers, at a heightened risk of a serious injury that could render them unconscious;
• Employees who need access to highly secured areas of a facility (albeit only as a voluntary alternative to some other form of identification; and
• Employees who travel to parts of the world where there is a high risk of being kidnapped and who prefer not to carry badges that reveal corporate affiliation.

Employers and employees may be surprised that there actually are some potentially beneficial and sensible uses of microchipping.  Microchipping highlights the need for  employers and employees to get past the initial, knee-jerk reaction against workplace technologies that can be invasive of privacy, such as Global Position Systems (GPS) and camera phones.  Rather, employers should focus on implementing such technology within the framework of policies and procedures that minimize or eliminate unnecessary intrusions while reaping the technology’s benefits.

There is one caveat with microchipping:  On September 11, 2007, The New York Times wrote about an Associated Press report suggesting that “VeriChip [the maker of the implantable microchip] and federal regulators had ignored or overlooked animal studies raising questions about whether the chip or the process of injecting it might cause cancer in dogs and laboratory rodents.”  Both VeriChip and the Food and Drug Administration denied this report, stating that “there were no controlled scientific studies linking the chips to cancer in dogs or cats and that lab rodents were more prone than humans or other animals to developing tumors from all types of injections.”  An FDA spokeswoman added, “At this time there appears to be no credible cause for concern.”