Submitted by Ali Law Group PC on
Many businesses now use biometrics in the workplace for purposes such as customer access, data security, and to track employee attendance. Biometric time clocks have replaced handwritten or paper timesheets, allowing employees to clock in with fingerprints, palmprints or iris scans. With the use of biometric technology, employers can better enforce timekeeping policies and procedures which has made managing employee attendance much more accurate and efficient. However, while biometrics continue to emerge in the workplace, there has been employee resistance to the use of the technology. Often, employees have privacy concerns, fearing that the data could be stolen or misused.
In 2008, Illinois was the first state to implement a law regulating the collection, use and retention of biometric data, known as the Biometric Information Privacy Act (“BIPA”). BIPA requires employers to obtain consent prior to collecting an individual’s biometrics. The law allows private citizens to commence an action against employers that collect their information without notice and consent.
In Sekura v. L.A. Tan, a class of tanning salon customers in Illinois brought a lawsuit under BIPA against L.A. Tan for its failure to obtain written consent prior to using their biometric data and not advising the customers how such data would be stored and eventually destroyed. The lawsuit was directed at the company’s failure to treat the data carefully, as required under BIPA. This case was the first to settle under BIPA for $1.5 million.
Since then, more lawsuits have been commenced under BIPA and this recent wave of litigation surrounding biometric technology has had an impact on other states’ decisions to introduce legislation on the matter. New York State limits the collection of biometric data under New York Labor Law Section 201-a, which prohibits employers from requiring the fingerprinting of employees as a condition of obtaining or continuing employment. As a result, as opposed to using devices that use a fingerprint, some New York employers have installed devices that use a finger geometry scan, which does not implicate Section 201-a.
With the use of biometrics and regulation of such use on the rise, employers currently using or considering utilizing biometric data are encouraged to ensure their use complies with the growing regulation in this area. In addition, employers who are considering implementing biometric scanner systems should develop a clear policy for their use. Employers should communicate with employees prior to introducing the biometric system to ensure that employees know how the information is being collected or stored and it is recommended that written consent be obtained.