Monthly Archives: September 2011

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.