Cybernetics, Contracts, and Specific Performance

Brett asks a question inspired by Deus Ex: Human Revolution, the recently-released prequel to the fantastic Deus Ex. The question is whether an employment contract can include a requirement that the employee be enhanced with cybernetic implants should they be necessary to perform the functions of one’s job. This question has implications beyond Deus Ex, such as the classic 1970s show The Six Million Dollar Man, and the RoboCop series, so rather than a mailbag entry, this one’s going to get a proper post of its own.

I. Employment and Employment Contracts

Let’s start with the first question here: what is the nature of the employment relationship? In general, in the US anyway, employment is “at will“. The basic idea here is that there is no contractual relationship between employer and employee beyond the employee’s obligation to do the work required of him or her and the employer to pay the agreed-upon wages for said work. So, for example, while an employer may not retroactively reduce an employee’s salary, there is generally no reason salaries may not be cut or employees fired at the employer’s sole discretion. This most frequently comes up in the wrongful termination context. A lot of people think that there are laws preventing them from getting fired under unfair circumstances. This is usually not the case. Unless the employer is violating a specific statute or constitutional provision, e.g. discriminating on the basis of race, gender, religion, or national origin, employees can, for the most part, be fired for any reason or no reason at all.

But all of that changes where there is an employment contract. Employers tend to avoid entering into employment contracts where at all possible, as this gives them the freedom to rapidly lay off or replace people if they need to. Union workers are the most numerous example of contractual employees, and most of their rights are really found in the provisions of the contracts they secure through collective bargaining rather than any law. But the fact remains that employers and employees can and sometimes do enter into employment contracts, and like in almost all other cases, there is very little limit to what terms can go in there (non-compete agreements are a notable exception). The courts are very, very reluctant to restrict the ability of private parties to structure agreements between themselves.

II. Employment Contracts and Cybernetics

The question then becomes whether employers can include the requirement that an employee receive cybernetic implants as a condition of employment. This will probably depend on the nature of the requirement. The significant feature here is less the kind of implants (though anything which is likely to expose the employee to unreasonable danger is going to be problematic) than the circumstances of the implants.

A. Implants Required Before Employment

On one hand, say there’s an employer that needs someone to do a very specific job, and that job requires the use of cybernetic implants. Right now there aren’t a lot of implants that augment typical human abilities, but the situation gets a lot more plausible if we remove the mind/machine interface part of it. We’ve already got prototypes of electronic tattoos which can monitor vital signs. How long will it be before someone adds GPS functionality or communications hardware? In any case, if the details of the implant are made clear before the employment begins, it seems likely that such a thing would be permissible, given certain restrictions.

First of all, the employer would probably be required to pay for everything related to the implant, even if that wasn’t a provision of the contract. Current workers compensation laws require employers to pay for workplace injuries and diseases regardless of fault, and characterizing the medical care needed to implant, monitor, and remove cybernetics would certainly seem to count, not to mention the expense of treating infections and other complications. Basically, if anything goes remotely wrong with an implant, the employer is going to have to pay for it. This is actually probably a pretty compelling reason implants aren’t likely to be commonly required of employees for quite some time.

Second, employment-related implants are bound to generate a rather frenetic round of litigation about whether having an implant means you are effectively on company time round the clock. The plaintiff bar would certainly like this, as it would expose employers to liability in far more cases than they are now, and this means bigger pockets in more cases. But courts aren’t that dumb, and the likely outcome is that unless the employee is actively engaged in the work of the employer, simply passively carrying an implant does not make one’s activities employment-related any more than carrying a key to the office on one’s key chain.

But that probably means that employers won’t be able to use implants to control the activities of their employees when they’re off the clock. Employers would probably like to be able to do this more than they can now, but they rightly don’t try to most of the time, because the ability to control implies the duty to exercise reasonable care, and employers don’t really want to be liable for the actions of their employees any more than they already are. All that by way of saying that employers that require implants will probably not be able to use the presence of those implants to exert all that much more control over their employees, by contract or otherwise, than they do already with things like cell phones and pagers.

B. Implants Required After Employment

Then there’s a slightly different situation. What if an employer decides that a current employee has to get implanted? This is a bit different, because rather than defining the terms of a relationship before it starts, now we’re changing horses in midstream, as it were.

Whether or not an employer can do this is going to depend very heavily on whether or not the employee has a contract. If they do, the employer isn’t likely to be able to add this as an additional term until it’s time to renew that contract. Terms cannot be added to contracts without the consent of both parties, and additional terms require additional consideration, e.g. additional wages or other benefits. But if there isn’t a contract, the employer might well be able to say that anyone who wants a job tomorrow had better sign up for the procedure. This is, of course, assuming that legislatures don’t enact laws restricting employers’ ability to do just that, and this actually seems like a sensational enough issue to provoke something like that.

C. Implants Implied Before But Installed After Employment

Now we get to the actual situation in the stories mentioned in the intro: an employment contract that does not require implants before employment begins, but permits the employer to add them in at a later date. This gets a little tricky, especially when, as in all of the stories in this list, the employee does not give consent at the time of the surgery. Now we run into a little issue called “specific performance.”  There are generally two possible remedies for a breach of contract: money, and specific performance. Money is just that: money. The injured side calculates the damages they have suffered, and the other side pays, under the terms of the contract. But the court can also order specific performance, i.e. requiring the breaching side to do what the contract said they were supposed to do. For example, if the contract was for the sale of a unique item such as a painting, then the painting would need to be delivered.

The thing is, specific performance is disfavored as a remedy in US jurisdictions. The judiciary has pretty much taken as gospel the idea that it’s more efficient to just pay the money and be done with it than to force two parties who probably don’t like each other all that much to finish whatever transaction they had in mind. So it’s only in rare situations, particularly in real estate contracts or contracts for the sale of one-of-a-kind items, that specific performance will be awarded.

But more to the point, specific performance is unconstitutional in employment contracts. The Thirteenth Amendment abolished “involuntary servitude,” and the Supreme Court interpreted that to include forcing people to perform under the terms of an employment contract in Clyatt v. United States, 197 U.S. 207 (1905). So if an employment contract had, as one of its terms, that the employer might require that the employee receive implants at some point down the road, they cannot actually make the employee do it. They can fire an employee that refuses, and they’d be entitled to whatever other remedies are included in the contract, but the courts would not require that the employee submit to implantation.

So the situations where the employee is injured (or killed) and then implanted while unconscious are tricky. First of all, there’s the unrelated issue of whether or not an employer can act to give consent to medical treatment when an employee is unconscious. Forms for this kind of thing already exist, and while it would certainly be highly unusual for an employer to be given this authority, there’s no law that says it couldn’t happen. But consent to life saving surgery is one thing, and consent to life altering surgery is something else entirely. Medical providers might well balk at going ahead with something like bionic enhancement without the express permission of the patient. So the employee would probably need to sign a contract to the effect that he gives the employer permission to authorize the implantation of specific bionic augments before surgery could proceed.

D. Termination of the Employment Relationship

What if an employee who has been implanted decides to quit? Does the employer get the implants back? If this can be done without endangering the life of the employee or seriously injuring them, it’s entirely possible, especially if there was an agreement stipulating that the implants were company property. A court will not force an employee to continue working for an employer if they do not want to, but a court will probably also permit the employer to recover its property in the employee, provided said property can be retrieved without seriously harming the employee, as that would also look a lot like “indentured servitude” as well. “You can quit, but you can’t walk afterwards” isn’t really something a court is going to go for. Of course, given that surgery is pretty expensive, the implants would probably need to be both reusable and fairly expensive for the employer to want to bother. That or highly classified, highly dangerous, or some other factor which would motivate an employer to recover them regardless of cost. But the fact remains that if a particular implant is so integrated into an employee’s body that removing it would kill them or permanently disable them, the employee can probably just quit, and the employer would need to rely on whatever penalties are in the contract, remembering that if the penalties are too severe, a court might decide that they amount to indentured servitude and invalidate them.

III. Conclusion

In short, it’s possible that an employer could make implants a condition of employment, but they’d have to be careful about how that was structured and would really need to ensure that they get the right permissions before hand. But the employee would always have the option to quit, because as a result of the Supreme Court’s Thirteenth Amendment jurisprudence, the courts will not force anyone to work for anyone else.

That’s only focusing on the employment and contract implications of cybernetics. The devices themselves are also a fertile ground of inquiry, but we’ll take a look at that another time.

36 responses to “Cybernetics, Contracts, and Specific Performance

  1. Interesting. This post also has application to Angel, since the standard perpetuity clause in Wolfram & Hart employment contracts would presumably be considered specific performance.

  2. It’s here, now.

    Well, sorta. Although the employment-related practicality of this implant is not yet proven, this simple body modification can provide human beings with a new sensory input.

    http://www.wired.com/gadgets/mods/news/2006/06/71087

    (If you don’t want to click, the article describes a body modification technique where powerful magnets are implanted under the skin. Persons with this modification can “feel” electrical fields in close proximity to the magnets.)

    While it’s arguable whether this is a “new sense,” as it just provides an alternate method of stimulating existing neural pathways, people who have it can do something that people who don’t have it simply cannot do. I have no trouble seeing refinement of this technique producing an employment-enhancing ability. For instance, they could tell whether an electrical device or feed was energized, WITHOUT any kind of meter or testing device, and with no possibility of a failed testing device producing a false negative. This would enormously reduce the possibility of damaging an energized device by working on it without cutting the power and/or injury to the worker from an unexpected contact with energized conductors.

    Electrical linemen tend to be conservative types and I doubt they’d go for this as-is, but if you just asked them, “If I could give you the ability to tell if a feed was energized just by waving your hand at it, would you find that useful?” I suspect the answer would be a resounding “Yes.”

    • That’s story is interesting but also a bit troubling. They are putting magnets into people’s flesh but are not medical practitioners*, they don’t have firm tests of this and by their own admission several people have gotten infections. I would be much more relieved if it was being done by medical researches who had tested it more extensively, including animal tests.

      *When the alternative to anesthetics is ice then I get worried.

  3. I’d expect a lot of employment requiring an implant to be structured as a contract position, rather than an employee-employer relationship, with “must supply own implants” as a term of the contract. That should avoid a lot of liability since the implant is owned by the contractor, who is responsible for it, the employer is just hiring the contractor to use it on their behalf.

    • Two problems with that. First, contract positions really have to be that: independent contractors. This significantly limits employers’ abilities to control the activities of their employees, and the courts will not recognize an individual as an independent contractors if they look like an employee in everything but name. There are already plenty of reasons other than this one that an employer might want to have more independent contractors than employees, and plenty of legal reasons why this is hard to do.

      But second, the main reason employers would probably provide their own implants for employee use is that implants aren’t likely to be cheap, nor is the surgery to implant them. If a company required that a potential employee show up with his own implants, they’d likely be drastically reducing their labor pool. In addition, employers who provide their own equipment have the advantage of economics of scale and standardization. The IT department has a hard enough time as it is integrating the equipment that the company has actually purchased for itself to make hooking up employee-purchased phones and laptops something of a nightmare. Imagine how much worse things would be with competing manufacturers’ implants. And, of course, using the employer’s equipment is a huge signal that a person is an employee, not an independent contractor, which goes back to the first point.

      Granted, this depends significantly on the nature, cost, and availability of implant technology which is, of course, something that is yet to be seen in the real world and entirely subject to authorial discretion in fictional worlds.

      • When I attend a conference, I usually bring my own laptop. I will also keep data on a flash drive so I can do work on any computer, not just the one the school provides. And companies used to provide cell phones (and before that pagers) but now they just expect people to have their own. I sure as Hell don’t see my school providing me with a laptop even though I need it for conferences. The trend seems to be to provide technology until such time as it becomes commonplace. Hell, they don’t even have clocks in the classrooms here. I guess I’m supposed to provide my own watch. 🙂

  4. I can see an interesting Wolverine storyline here: “We want our admantium back & he can survive the surgery without loss of life or limb” 🙂

    • But wouldn’t there be a tax-payer claim there against the government (even though I know that courts frown on tax payer claims)? The procedure to remove the adamantium would presumably be wildly expensive, since it would require so much specialized equipment and goes through Wolverine’s entire body. Couple that with the fact that adamantium, once hardened, can’t be remolded, and the removed metal would be useless to the goverment unless they got a second test subject who was exactly the same measurements as Wolverine to put them into the new person. Given that, the procedure would seem to be a gross misappropriation of government funds, thereby leading to the tax-payer claim.
      But, there is also the question of what in particular is classified in the Wolverine experiment. Is it Wolverine’s existence (which would seem to be undermined by the fact that people in the general public are aware of him, and I’m not sure the existence of a live individual can be classified)? Is it the fact that he was experimented on with adamantium (again undermined by the general knowledge of his existence)? Or is it the technical know-how to manipulate adamantium (which would become a moot point here since the metal is already hardened)? So would the government even have an argument about needing to protect classified information to overcome the problems with the legal challenges to the missapropriation/ mismanagement of government funds?

      • The federal courts don’t just frown on tax-payer standing, they almost entirely reject it outside of a narrow exception for Establishment Clause cases (e.g. if the federal government tried to spend tax money on establishing a church). Some state courts (e.g. Missouri) have broader standards for tax-payer standing, but in Wolverine’s case it’s a federal government project.

      • At least in the US, being widely publicly known and being classified are not entirely mutually exclusive. I.E. Area 51 for the best known example. Or, less well known to the general public, but widely known in the appropriate circles, the USS Parche. (Publicly acknowledged to exist, but any details beyond that being classified.)

      • Ryan Davidson

        In addition, Weapon X was a Canadian project, so there’s no theory under which a case for misallocation of funds could be brought in a US court. Canadian courts have created “public interest standing” to challenge various laws as unconstitutional, but simple misallocation of funds isn’t going to work.

        Second, even if it were a US-funded project, Congress is explicitly authorized to spend money on the armed forces. Convincing a court to strike down almost any defense expenditure just isn’t going to happen, as the courts do not investigate the propriety of congressional decisions which are clearly within Congress’s authority.

      • The U.S. Supreme Court has pretty clearly established the only time a person can ever use tax-payer status for standing to attack the Constitutionality of a law is when it is a tax law. In all other circumstances, this is an un-Constitutional end-run around the legislative process. Because just because you’re a tax-payer doesn’t mean you personally are a legislator, and it’s not as though you can prove that *your* fungible funds went toward any specific government legislation.

  5. I suspect the specific case of Col. Steve Austin would be somewhat different.. If he’s a serving officer (as the use of his rank title implies*), the rules are different as the relationship between the Federal Government and a uniformed service member are not the same as the employer/employee relationships discussed above.

    *Making the very broad and unsupported assumption that the producers got that right… Titles are only used for serving members and retired commissioned officers.

    • This is really rather amazingly true and little-known. For instance, vaccines which haven’t been approved by the FDA can be used on service members. Refusing to allow administration of the vaccine is insubordination and could, if the services decided to get tetchy, get you thrown in the stockade and/or dishonorably discharged.

      IIRC Col. Austin was on detached duty to NASA but was in fact still an active member of the USAF.

      *wiki-fu*

      La Wik says it depends which version you use. In the book which inspired the TV show, he was an Army helicopter pilot who transferred to the USAF and then to NASA during the lunar missions. Also IIRC and I’m not going to look this one up, all the Apollo astronauts were active on detached duty. In the pilot for the show, he was a civilian, but during the regular run he was retconned back into a USAF Colonel.

      • Just as a note – being on detached duty, or being seconded to a non military organization (frex NASA, or the fictional OSI) doesn’t release you from the strictures of military discipline or the bonds of your contract.

      • Derek – Quite right. I wasn’t clear enough, that was where I was going with that. Even if he’s on detached duty, Steve Austin is still a Colonel of the United States military with all the rights, privileges, and responsibilities appertaining thereto. And the USG basically owns his hiney.

    • This isn’t about medical implants but I think it’s related.

      In the Miles Vorkosigan novels, some spies have a purposely induce a fatal allergy to a drug that works like truth serum. I assume it would be legal for the CIA to give an allergy like this to some of their agents (especially if they volunteered). But could a private employer require getting the induced allergy as condition of employment?

      • Before hiring someone? Probably. People could always just not take the job, so there’s no coercion there.

        After hiring someone? Harder. We’re talking about voluntarily submitting to a life-threatening condition with no real upside. Courts don’t generally allow people to give consent for serious bodily injury, and this looks a lot like that.

        Of course, surgery is serious bodily injury. That’s why the original Hippocratic Oath prohibited surgery. The legal system has recognized, along with the medical profession, that there’s a difference, but here there probably isn’t.

      • IIRC, in the Barryian Imperial Security Service (ImpSec) it was voluntary, the upside for the subject was that a whole range of career opportunities and promotions open up when they know you can’t be interrogated with fast-penta.

        In the later books, they had a simple, quick test for the allergy, natural or induced.

        Miles himself was never given the allergy inducing treatment, but it turned out he has a quirky response that allowed him to beat a fast-pent interrogation.

  6. I was just playing that game! Here’s some questions, riffing off of it. These questions are spoilers (though not really about the game’s primary narrative) for those who would like to just scroll past.

    First: Jensen’s augmentation occured after he was critically injured in the game’s first stages. (It seems, at least I infer, that the “LIMB” NGO who provides cybernetic augmentations has at least somewhat replaced conventional emergency room treatment; of course, LIMB was also literally one block away from Sarif Industries, and as such they may have been where Jensen was rushed.) However, it’s said that the augmentations needed to save his life and restore him to normal function were a replacement arm and some repair of internal organs, along with, presumably, some treatment for injury to the brain.

    However, David Sarif pulls out his cash roll and has Jensen made over completely, involving brain surgery and the replacement of at least his arms (I believe his legs also, but it’s unclear if they’re prosthetic) in addition to giving him a wide variety of equipment. Now, much of this equipment is beneficial to Jensen in the performance of his job, but these were done without his consent. What legal remedies could Adam seek against his employer? Would Sarif be at fault? Could he have a suit of some kind against LIMB?

    Second: The majority of Jensen’s augmentations seem as if they would be legal on the face of them; certainly, the life-saving organ replacements wouldn’t be illegal, and replacement limbs seem ubiquitous. However, some would not be.

    Jensen has had a suite of electronic intrusion tools installed in him (it’s unclear exactly where, though he does have to stand up to use them) which appear to be almost entirely and solely for the purpose of hacking computers of various kinds. These are extremely useful, but would they be legal? (You’re able to ‘hack’ your own computers, which obviously would be your choice, as well as Sarif Industries equipment that you presumably have jurisdiction over as their chief of security.)

    He has also had a prototype of an experimental anti-personnel weapon system, being built by Sarif under contract for the Department of Defense, installed into him. Is Jensen violating any laws merely by possessing the Typhoon? The device is evidently at least somewhat confidential. Of course, Jensen, as he himself remarks, never asked for this, but would that in any way modify the situation? He is certainly aware of the broad outlines of the Typhoon system, and who it was being developed for.

    Third: Jensen, even without any unlocking of the complex higher functions of his augmentations, is capable, easily, of killing a man with his bare hands. While he seems to exhibit awareness of this ability, or at least, the ability to disable assailants/guards without killing them. Would this have permutations if, for instance, Jensen got drunk and took a swing at Frank Pritchard, as his augmented strength would let him snap Pritchard’s puny neck like a twig — even if he does not?

    Fourth: The concept of veterinary cybernetics, or as it is memorably termed, “dogmentation,” is broached. Would modification of a pet or farm animal qualify as animal abuse, or would it depend on the nature or purpose of the modification?

    • Considering that there’s a wide range of freedom in how you can treat animals today* I don’t think it would qualify as animal abuse. Maybe the nature and purpose would have some determining factors.
      Heck, in a report (can’t remember if it was BBC or NY Times) a group of farmers got together to hire the services of a company to try to clone especially meaty livestock. If that and growth hormones are legal then giving them legs that take a twenty foot jump are probably fine.

      *Except for pets and endangered ones obviously.

  7. The situation with RoboCop would be rather different from a legal standpoint than for Steve Austin or that guy in the video game you’re talking about. Alex Murphy wasn’t just injured, he was definitively killed. Much of his brain was destroyed by the bullet Clarence Boddicker fired into his head. He was functionally and legally dead, and OCP harvested what remained of his brain and nervous system to control the autonomic functions of their security cyborg (and maybe a few other core organs to sustain them). They never anticipated that fragments of Murphy’s memory and personality would reawaken inside RoboCop.

    So what we’re dealing with in RoboCop’s case is not putting cybernetic implants into a human being, but the opposite: harvesting organs from a human corpse and implanting them in an experimental robot body. As the line in the movie says, “He’s dead. Legally we can do what we want with him.” That might be true if Murphy was an organ donor, and I figure a cop probably would be. However, there might be questions about OCP’s right to use his harvested organs in cybernetic experiments without his prior consent or that of his family. Although we’re dealing with a corporate dystopia where the police had become OCP employees and the corporation probably held a lot of rights over them that real-world American courts would frown on.

  8. Hm. Could an employer state something like “Applicants must either have implants or agree to purchase implants at their own expense within a month of hiring, implants must meet these specifications” and then note something like “Oh by the way – we SELL implants, easy payment plans available”? Would it matter if they were the only ones who sold those implants, or if there was an “employee discount” program that basically went “You owe us $5 million for this implant, but in addition to your salary every year you are employed by us we pay $10,000 toward your implant loan”? If Implant Joe quit he might be “free” but he’d owe his employer millions… and they might have the right to repossess the equipment and still charge the former employee for the “surgery costs”. Or is that just beyond the pale?

    • Yes, it probably is “beyond the pale.” Most states do not permit employers to require the use of particular equipment or the wearing of particular clothing unless that equipment/clothing is provided. Again, if the employer wants to exert control over that kind of thing, the people almost certainly can’t be independent contractors, and employees aren’t generally supposed to use their own stuff for work.

      Abercrombie & Fitch recently settled a class-action lawsuit for $2.2 million over the allegation that it required its retail employees to wear A&F clothing but did not provide it for them.

      The situation you describe sounds even worse, almost like a truck system, which is illegal not only in the US, but in most parts of the world.

      • It is however legal and common in the manual trades for employers to require employees to provide their own tools and safety equipment – it is not that are particular tools/equipment, but that they meet generally accepted standards of performance. (I.E. all the company cares is that employees owns a hammer and ISO whatever safety goggles.) In professional kitchens for example, it’s expected that chefs will provide and maintain their own knives. Contractors require that new hires will provide their own basic hand tools. Auto shops ditto. Though in all three cases, the employer also provides tools and equipment that are either very common and not chosen by preference (ladles and spoons), or too expensive (auto analysis computers).

        We also have a case where implants and surgery are already verging on being required de facto if not de jure – breast augmentation and plastic surgery.

      • Added because I forgot… second para: So what matters in this situation is how common the implant is, and how expensive it is to obtain one. If the required implant is a few hundreds bucks, functionally identical to the companies requirements, and a half days outpatient surgery – the situation may be very different than if they are $MEGABUCKS and days of post op recovery.

      • All of that’s true as far as it goes, but it’s my understanding that a lot of those people either are independent contractors–especially in the manual trades–or that the employer provides some kind of allowance for equipment. The latter is entirely acceptable, i.e. if A&F had required its employees to wear A&F clothes but had also given them an allowance for such clothes, that would have been fine. Chefs are frequently partners in the restaurant in which they work, so they’re more like business owners than employees in some sense. Line cooks, on the other hand, punch the clock just like the bus boy and generally use whatever the employer has on hand.

        But I still think that expense is going to latter somewhat less than the nature of the relationship here.

      • “Most states do not permit employers to require the use of particular equipment or the wearing of particular clothing unless that equipment/clothing is provided.”

        So if your boss tells you to drive across town he has to provide you with a car? If your boss asks you for your cell phone number so he can call you when you’re not at work he has to provide you with your cell phone? I suppose it depends. If you are told (especially in your contract) that you need a car and/or a cell phone for work then you can insist that your employer provide it or them. Right? Thing is, it would be easier for an employer to just hire somebody who has his own car and/or cellphone (although I imagine you could easily get away with insisting that the company pay for gas).

  9. I suppose the other complicating factor with these is the generally experimental/prototype nature of the implants in question. With the exception *maybe* of Adam Jensen (where the technologies used have obviously been in play for a while, though things like the Typhoon are potential exceptions) I’m skeptical the stuff has gone through FDA clearance procedures in advance. Assuming you could compel the employee to accept cybernetic augmentation legally, the FDA would probably still balk at letting any contract allow the employer to bypass their review process. Even Robocop, while being legally dead, might raise public health issues (what if the remaining tissue acts as a reservoir for disease?) the FDA could object to. I’d think any smart doctor would refuse to potentially break the law by sticking your experimental devices into a person who’s given somewhat dubious “consent” via contract.

    • That gets even more interesting.

      For one thing, the military can do basically whatever it damn well pleases with regard to medical experimentation. The FDA and basically just administrative law in general doesn’t really apply to the Pentagon.

      But it does apply to everyone else, and it’s illegal to put into commerce any medical device which has not been approved by the FDA. Contracts will not get around this prohibition, because a contract which has an illegal object as its consideration is void as a matter of law. If two drug dealers have an agreement about delivery and distribution, that’s all well and good, but it isn’t technically a contract, because the subject matter is illegal. Similarly, the courts will not permit an employer to get around FDA requirements by making violations a requirement of employment. That just isn’t something one can agree to or waive.

    • One explanation in these specific settings is that the FDA had been defanged or shut down in order to let liberty reign, but that does go against the site’s traditional assumptions.

  10. Supposing that the implant is considered company property, but removing it would be so detrimental to the employee’s health that a court would not let it be removed. After the employee quits, can the employer enforce a contract clause that says basically “the implant belongs to us and therefore you can not use it in the course of working for anyone else.”?

  11. While I find this topic interesting, I think your original post as well as many of these comments seriously downplay medical malpractice law. The way you suggested at one point that an employee would have to agree to a clause in the contract allowing the employer to surgically install implants at some undetermined point in the future? Totally bogus.

    For one thing, this would totally violate most principles of informed consent. Whenever a doctor performs a surgery he has to explain the morbidity and mortality rates, the exact nature and risks of the procedure, alternative procedures that could be done instead, the risk of doing nothing, etc. This is sacrosanct in large part because of the 14th Amendment privacy right that includes the right to refuse medical treatment (famously exercised by Jehovah’s Witnesses who refuse blood transfusions). I find it extremely unlikely that a court would conclude that a waiver potentially months or *years* in advance of an elective, unnecessary –yet potentially still life-threatening– surgery properly conforms to informed consent.

    Even if one thinks that it *does* properly follow informed consent (which is a difficult standard to meet), I would borrow from principles of sexual assault law as to the issue of consent. A famous judge once explained in a Supreme Court opinion that one cannot on Wednesday agree to have sex on Saturday, and then by the time Friday comes along be told that one has lost any and all right to refuse for the next 36 hours.

    When it comes to bodily integrity, one always has the right to change one’s mind. That’s not something you can contract out of. (Aside, perhaps, from the military examples you guys were discussing earlier.)

  12. Suppose the employer implants the employee with cybernetics that requires expensive maintenance that only the employer can provide? The employee quits, but his only source of maintenance is the employer. The employer no longer provides free maintenance as part of the job, since the employee is no longer working for him. Can the employer make him pay $10000 a month or whatever for maintenance just to stay alive? Does the employer have to provide maintenance for free? (Would “requires thousands of dollars of maintenance for bionics” be considered a medical condition suffered on the job?)

    What if the employer is not the only source of the maintenance, but the cost of maintenance is still beyond what the employee can provide on his own?

    Does it matter how the employee agreed to the cybernetics in the first place? Assume the cybernetics did not save his life, but were just agreed to as a condition of employment. Can the employer require as a condition of employment that the employee take on cybernetics that he cannot afford to maintain if he leaves the job?

    Also, what about classified cybernetics, such as with the Six Million Dollar Man? Can the government prevent the employee from “revealing classified information” by prohibiting the employee from getting the cybernetics maintained by anyone except the government, and if so, is the government then obliged to provide maintenance?

    • In the game this is actually a specific issue that comes up as the cybernetics require a regular (and expensive) anti-rejection medication shortly after receiving them and for the rest of their life or they will suffer extreme pain, loss of use of the cybernetics, and other unspecified problems. There are some prostitutes that are being forcibly implanted against their will in order to make them reliant on their pimps supplying anti-rejection meds (a none too subtle allegory to real life prostitutes being addicted to street drugs).

      In the real world this would run into a couple issues. Paying the employer directly for vital medication would probably fall too closely to indentured servitude as it makes it nearly impossible to quit. However if it were a generically available (if expensive) medication then it would come done to the specific contract. The one thing that corporations would have to be particularly careful about is that if they required or forced cybernetics that the longterm medical requirements be very very clear or they could end up being legally responsible for the expensive medication even if the employee left because they forced them into it without informed consent.

  13. Pingback: Links for 2011-09-19 « Random Ramblings of Rude Reality

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