July 26 2017
This week a U.S. company called Three Square Market out of Wisconsin announced that it would be micro-chipping employees. It stressed that the measure was voluntary, and that the chip would be used to pay for cafeteria food, open doors, and give access to the photocopier and computers. The technology works in a similar manner to your scanning Debit card. This Independent article notes that micro-chipping raises “wide-spread concerns around safety and privacy”.
Three Square says the micro-chipping is voluntary. I’m always suspicious when a company tells employees that a work practice is ‘voluntary’. For example, Canadian employment standards laws sometimes permit employers and employees to “agree” to waive certain statutory rights, such as the right to overtime after a certain number of hours worked (see e.g. Ontario ESA, s. 22(2) on “agreements” to average out overtime hours). The government claims that there is no concern that employers will force employees to waive their overtime pay since the law requires employee agreement. If the employee does not want to waive their rights, then they can simply refuse to agree to the waiver.
However back in the real world, if your employer says to you “We would REALLY appreciate it if you would agree to this arrangement”, many employees will “agree” to appease the employer’s wishes, fearing that not doing so will reflect poorly on them. Something is voluntary only if you can refuse to do it without any fear of negative repercussions. Therefore, a question at Three Square will be whether the employees feel that their employer will look negatively on employees who refuse to be micro-chipped. Will someone who refuses to be chipped be branded not a team player? This concern is especially real in the U.S. where most employees are employed “at will”, meaning they can be terminated at any time without notice, no reason needed.
Here’s an interesting question: Could a Canadian company introduce a requirement that employees be micro-chipped?
We have to assume that employee micro-chipping is coming to Canada, if it is not here already. This raises the interesting question of whether any law in Canada would prevent an employer from introducing either ‘voluntary’ or mandatory employee micro-chipping. I addressed a similar question back in 2012 when stories about employers introducing finger scanning hit the news.
What do you think? Can employers require employees to get micro-chipped? What if employers ask in job interviews if the candidate would agree to micro-chipping and then refuses to hire anyone who objects? Does any law prevent that?
The question is more easily answered if the workplace is unionized and the employer attempts to introduce a micro-chipping requirement for existing employees. That’s because Canadian labour arbitrators interpreting management rights in unionized workplaces have imposed fairly stringent limitations on the right of employers to introduce technology that tracks employees and infringes on their privacy. As examined in Chapter 33 of The Law of Work [Privacy Law at Work], arbitrators weigh a unionized employee’s right to privacy and protection against intrusion on their body against any legitimate and pressing business concern of the employer. (See also discussion by the Supreme Court of Canada in Irving Pulp & Paper]
It seems unlikely that an employer could persuade a labour arbitrator that mirco-chipping employees is necessary to protect an employer interest. Arbitrators have already struck down some attempts by employers to introduce biometric scanners at unionized workplaces, ruling that the infringement of employee privacy outweighs any employer need. We have survived a very long time without micro-chipping technology.
It is much less clear whether there is any restriction on a nonunion employer’s right to insist upon employee micro-chipping.
Can you think if any common law or statutory rule that would prevent this practice? Some provinces (B.C., Sask., Manitoba, Newfoundland & Labrador, Quebec) have enacted privacy legislation that could prohibit an employer from requiring employees get micro-chipped. However the other provinces (including Ontario) do not have privacy legislation. The Federal Information Protection and Electronic Documents Act (PIPEDA) may have some application to the rights of federally regulated employers to institute mandatory micro-chipping of employees, depending on how the information collected by the chip is used.
It is possible that human rights statutes have something to say about the right of employers to micro-chip employees, but only if a prohibited ground of discrimination is activated. Human rights statutes do not create a general right to privacy. If for example a person’s religion forbids them from being micro-chipped and surveilled electronically, then that person might have a human rights claim against the micro-chipping. I have no idea off hand whether there is a religious objection to micro-chipping, but there have been successful religious based objections to biometric scanning for example (see e.g. this interesting arbitration decision by Arbitrator Albertyn involving ‘the mark of the devil’).
Could the occupational health and safety statutes apply to grant employees a right to refuse to be stabbed by a needle injecting a micro-chip? That’s an interesting one.
How about the common law rules of contract or tort?
Well there is no recognized general tort of infringement of privacy in Canada. However in 2012, the Ontario Court of Appeal recognized a new tort called “intrusion upon seclusion” in the decision of Jones v. Tsige. This is a good law assignment: Read Jones and some cases that have followed it and then explain whether that tort could have application to an employer that insists on micro-chipping employees.
In terms of contract law, consider the emerging implied duty of good faith that employers owe employees, or my personal favourite, the implied obligation to treat employees with respect, decency, civility, and dignity. Would an employer breach either of these implied terms by insisting on micro-chipping the employee? A while back I described a case called Colwell v. Cornerstone in which a nonunion employer was found to have breach the implied duty of good faith by installing a secret surveillance camera in an employee’s office. Is that analogous to the micro-chipping scenario, do you think? How about the implied obligation on employers to avoid harassment of employees, recently applied in Merrifield v. A.G. (Ontario)?
Of course, even if an implied contract term is violated by an employer that insists upon micro-chipping its employees, that would not necessarily prevent the employer from proceeding. Objecting employees could quit and sue for constructive dismissal, like the employee in Colwell, but absent some statutory restriction, the employer could include an expressed agreement to be micro-chipped in future employment contracts.
Of course, the easiest solution would be a new statute (or new section in an existing statute) that expressly prohibits employers from micro-chipping employees, if we were concerned about the practice.
Issue for Discussion
Should we be concerned about employers adopting surveillance and scanning technologies such as micro-chipping? Why or why not?
If we should be concerned, should the government introduce new legislation that expressly regulates when and in what circumstances employers can use this technology?
Should micro-chipping employees be banned outright? Why or why not?