Biometrics in the Workplace

January 23rd, 2019 by Karen Glickstein at Polsinelli


Biometric Compliance for Employers

With many employers embracing new technology to achieve efficiencies in the workplace, companies using increasingly popular biometric programs must take steps to ensure that the use of these systems does not violate the law in several jurisdictions.

Biometric systems allow employees to punch timecards or authenticate access to certain computer applications through use of fingerprints, scans of facial features or irises, or through voice, hand geometry or palm vein recognition.  The technology provides employers with an additional level of security.  For example, it is more difficult for employees to punch in for co-workers.  Biometric systems are also more secure than traditional passwords, which are easier to compromise.

State Legislation

Many states have passed legislation that limits the use of such information by employers.  Illinois, Texas, and Washington have enacted legislation that regulates the collection and use of an individual’s biometric information.  New York has not enacted a law specifically targeting biometric information, but does prohibit most private employers from requiring employees to be fingerprinted as a condition of securing or continuing employment.   

The Illinois statute contains a private cause of action, and over the past two years individuals, including employees, have filed over 50 putative class action lawsuits seeking redress for corporations’ failure to comply with statutory requirements. 

In other states, potential monetary exposure is high, with fines up to $25,000 per violation in Texas and up to $500,000 in exposure in Washington, if the attorney general files suit and establishes a violation. Furthermore, individuals who believe that their biometric information has been misused have increasingly filed common law claims for torts such as an invasion of privacy, fraud, and negligence.

Biometric Policy

While statutory requirements differ from state to state, employers using biometric technology in the workplace should, at a minimum, check the applicable state law requirements and consider taking the following steps:

  • Adopt and distribute a written policy describing the purpose of obtaining biometric information, including how the information will be used, stored, and disposed of when no longer needed;
  • Obtain written consent from employees before collecting or disseminating biometric information;
  • Implement protocols to safeguard the biometric information and communicate them to employees;
  • Recognize that limits may exist on disseminating the biometric information, including to third parties such as payroll providers, and address those contingencies in written policies;
  • Never use the biometric information for profit;
  • Review all documents disseminated to consumers and employees to ensure that you have provided proper notice, disclosures, and class action waivers, where appropriate; and
  • Review the law in each jurisdiction where you are collecting, storing or disseminating the information to ensure state law compliance.

Employers that currently make use of biometric technologies (or are considering same) would do well to consult with competent counsel.

This blog was written by Karen Glickstein at Polsinelli, which authors hrsimple resources in Missouri, Kansas, and Illinois. You can find the original blog post and their labor and employment blog Polsinelli at Work (which is excellent) on their website.  



Related posts

Carnac the Magnificent says – Politicussin

This blog was written by Aaron Warshaw at Ogletree Deakins, which authors our Model Policies and Forms for Tennessee Employers, Massachusetts Human Resources Manual, Colorado Human Resources Manual, and Employee Benefits – An Employer's Guide. You can find the original blog post and their Our Ins...

Controlling the political speech of buttons*

This blog was written by Danielle Krauthamer and Setareh Ebrahimian at Fisher Phillips, which authors our South Carolina Human Resources Manual, Model Policies and Forms for Missouri Employers, Model Policies and Forms for Kansas Employers, and Workplace Safety and Health Compliance Manual. You c...

Cursing, surfing, weapons, gadgets – illegal, inappropriate or OK?

It happens in almost every workplace almost every day: somebody swears or is on an iffy website or is carrying a knife (or worse) or is using their own (not secure) phone or computer to send off a quick business email or text. So what is illegal, what is inappropriate and what is just not that...

Election leave – employer's civic duty, migraine, or just wishful thinking (election, leave!)

This blog was written by Deidra Nguyen at Littler Mendelson, which authors our Model Policies and Forms for Maine Employers. You can find the original post and their Dear Littler (which is excellent) on their website.   Dear Littler: What is the Story with Employee Election Leave? Deidra...

Costumes, booze and the Great Pumpkin – beware the office Halloween party

This blog was written by Adam Gutmann at Cozen O'Connor, which authors our Minnesota Human Resources Manual, New York Human Resources Manual, and Pennsylvania Human Resources Manual. You can find the original post and their HR Headaches blog (good stuff) on their website. Halloween in the Work...

Disability/pregnancy practices – what not to practice

This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).   Employers,...

IL – Required expense reimbursement for your employees, not Bill Self

This blog was written by Peter Gillespie at Laner Muchin who are authors of our "Illinois Human Resources Manual". You can find the original blog post and their Fast Laner newsletter on their website.   Illinois Employers Should Review Expense Reimbursement Policies Peter Gillespie Ef...

Public disclosure of confidential information is easier than you think

This blog was written by Tina Syring at Cozen O'Connor, which authors our Minnesota Human Resources Manual, New York Human Resources Manual, and Pennsylvania Human Resources Manual. You can find the original post and their HR Headaches blog (good stuff) on their website.   Do You Know What ...

If religious accommodation and a flu shot both equal angst, is that the transitive or substitution property?

This blog was written by David Broderick at Littler Mendelson, which authors our Model Policies and Forms for Maine Employers. Dear Littler: Do We Have to Accommodate A Religious Objection to the Flu Shot? David Broderick at Littler Mendelson Dear Littler: I work in a health care setting...

Workplace shootings – 20 can-dos to prevent them

This blog was written by Debra Friedman, contributor to our New York Human Resources Manual, at Cozen O'Connor, which also authors our Pennsylvania Human Resources Manual and Minnesota Human Resources Manual. You can find the original post and their HR Headaches blog (good stuff) on their website...

No call/no show shows. No what about it.

No call. No show. Assume they quit. Find a replacement. Move on. Then who shows up but Ms. Nocall Noshow. Now what? Depends on what happened, your policy, potential laws (ADA? FMLA?), disabilities, stuff, junk. SHRM helps, with help from our author Fisher Phillips and long-time friend...

If it's called a dress code, can I wear pants?

This blog was written by Natasha Sarah-Lorraine Banks at Fisher Phillips, which authors several of our resources.  When Strict Dress Codes Went Out Of Style: The Modernization Of Workwear “Every day is a fashion show, and the world is your runway.” – Unknown This modern-day old adage giv...

TN: Conceal and carry means post to prohibit or permit

This blog was written by William S. Rutchow at Ogletree Deakins, author of our Model Policies and Forms for Tennessee Employers. Ogletree also authors our Massachusetts Human Resources Manual, Colorado Human Resources Manual, and Employee Benefits – An Employer's Guide. You can find the original ...

Four-legged office mates and the pawternity policies they benefit

This blog was written by Danielle Krauthamer at Fisher Phillips, which authors several of our resources. You can find the original post and the On the Front Lines newsletter on their website.   Pawternity Leave: Are Employers Barking Up the Wrong Tree With Pet-Based Leave? We’ve all hear...

School-related parental leave does not mean you forge a note from your kid

This blog was written by Jason Plowman at Polsinelli. Polsinelli authors hrsimple resources in Missouri, Kansas and Illinois. You can find the original blog post and their labor and employment blog Polsinelli at Work (which is excellent) on their website.   Back to School Edition: School-...

Background checks of the future are continuous

This blog was written by Spencer Waldron at Fisher Phillips, which authors several of our resources. You can find the original post and the Employment Privacy Blog (which is excellent) on their website.   How Much Do You Really Want to Know About Your Employees? The Growing Popularity of Co...

Treating service animal requests (always treat the animal)

Service animal pop quiz (yes/no): The ADA permits assistance dogs to be with their person where members of the public can go (yes) The ADA requires service dogs to be professionally trained (no) Minature horses are covered under the ADA and Great Danes can be the size of miniature horse...

Prepare for saying "No" – you need to decide how to refuse service

This blog was written by Seth Ford and Matt Anderson at Troutman Sanders, author of the Georgia Human Resources Manual. You can find the original article and their HR Law Matters blog on their website.   A Plan for Saying No: How to Refuse Service Refusing to serve a patron is a hot topic...

List 10 up: What's the deal with employee handbook rules?

PODCAST Spend 20 minutes with Ruthie Goodboe from our author Ogletree Deakins as she discusses employer work rules and employee handbook policies and practices in the podcast What's the deal with employee handbook rules? List 10 up: covers union AND non-union workers employees raisi...

No, you can't sleep on the job

This blog was written by Shelby Skeabeck, formerly of Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog post here and their Labor & Employment Report newsletter (which is excellent) here.   No, You Can’t Sleep on the Job, Especially when it’s...

Should you give your employees a little Slack – or do they have enough already?

Are Your Employees “Slackers”? How Employers Should Handle Slack—The Increasingly Popular Instant Messaging Application Launched in 2014, Slack is the fastest growing business application in history. For those unfamiliar with this piece of technology, Slack is a cloud-based “team collaborati...

Zero tolerance for "zero tolerance" policies

This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers. You can find the original here and their Employment & Labor Insider blog (which is one of our favorites and is excellent) here.   Zero tolerance for "zero tolerance" polic...

PTO on the house!

This blog was written by Kat Cunnignham, president of Moresource Inc., a member of the Missouri Chamber. You can find the original blog post on the mobile edition of Missouri Chamber's Missouri Business   Traditionally, most companies have offered a paid leave package to employees that diff...

New rules for work rules

This blog was written by Fiona Ong at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog post here and their Labor & Employment Report newsletter (which is excellent) here.   NLRB Issues New (And More Balanced) Guidance on Handbook Rules ...

Guidelines for a valid no-solicitation/no-distribution policy

Guidelines for a Valid No-Solicitation/No-Distribution Policy This blog was written by Fiona Ong at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog post here and their Labor & Employment Report newsletter (which is excellent) here.   Man...

Personal hygiene in the workplace

When you took your job in HR, you knew that you would have to face some uncomfortable situations: terminations, poor performance reviews, disciplinary actions, but perhaps the worst of all is the “we need to talk about your personal hygiene” conversation. Your staff’s poor personal hygiene can ne...

Conducting internal I-9 audits

This blog is an excerpt from our book Employment Verification – An Employer’s Guide to Immigration, Form I-9 and E-Verify by David Selden and Julie Pace at The Cavanagh Law Firm. For more information, go to the Products tab above and click on "Federal" to subscribe.   For many years, an emp...

Attendance policies

Needless to say, a company can’t operate (let alone succeed) if the employees aren’t showing up to work. But how do you ensure that your workforce will consistently report for duty? One good step is having a clear attendance policy. Communicating clearly about what are acceptable reasons to miss ...

Nepotism: favoring relatives and friends in the workplace

It is not unusual for multiple members of a family to work for the same employer.  However, such situations can be troublesome if the family members are in a superior-subordinate relationship because: the relationship may give rise to favoritism or to suspicions of it the subordinate fami...

The Form I-9 has changed… Again!

Immigration enforcement is a major priority for the Trump Administration. Work site enforcement and I-9 audits and inquiries by ICE have been increasing and they will continue to increase. In addition to this, yet another new I-9 form was issued in 2017. All employers must use the new Form I-9 du...

Arizona sick day policy

Arizona sick day policy Julie A. Pace, The Cavanagh Law Firm This blog comes directly from the Arizona Human Resources Manual. If you are an hrsimple.com member, just log in and go to Chapter 21, Personnel manuals and policies. Beginning on July 1, 2017, under Arizona law, all employees ...

Vacation policies and time off

Not all employers provide employees with vacation time, but for those who do it is wise to have a clear, well-enforced policy in place to prevent confusion and help employees understand what steps need to be followed in order to use their time off. If employers decide to provide time off they nee...

Employee handbooks – getting a handle on your policies

While there may be no state or federal law requiring an employer to have a handbook, there are a number or reasons why they are in an employer’s best interest.  Usefulness. It is beneficial for there to be one definitive source on the terms of employment. If an employee ever has a question ...

Employee Privacy and Social Security Numbers

Workplace Privacy Do you monitor your employees using technology?  Would you consider making them wear wristbands or other devices capturing their every move? This spring, news spread that Amazon had been granted two patents for a new wristband that appeared to be designed to do just that f...