Implementing Biometrics in the Workplace
A few years ago, the Bloomberg administration implemented biometrics technology to keep track of New York City employees. The plan was met with contentious employee reactions as many workers expressed outrage that the system was intrusive and violated their privacy. But the city was very pleased with the results of the system and proclaimed it to be the "wave of the future."
When it comes to workplace security, employers are increasingly turning to biometrics technology, such as facial and voice recognition, hand and iris scans, and finger and palm prints, for various security and business purposes. Many companies use biometrics for purposes such as customer access, data security, and other purposes. However, while biometrics continue to emerge in the workplace, employees often push back against the use of biometric technology in the workplace.
Employees fear the possible misuse of their private data or object to what they view as the ultimate invasion of privacy. They may refuse to allow an employer to scan, record, collect, or otherwise obtain biometric data.
There is no legislation that prohibits firing an employee for refusing to provide a fingerprint, iris scan, or other biometric data. Under the employment-at-will doctrine in many states, employers may terminate employment for any lawful reason and would have the right to fire an individual that refuses to provide biometric data.
From an employee relations standpoint, however, an employer should carefully consider all the facts before deciding how to deal with employees that refuse to provide biometric data because forcing the issue could cause a legislative backlash. For example, in recent years some employers began collecting social media passwords and other similar information from employees and applicants. Public outrage quickly led to legislation in many states that called this an invasion of personal privacy.
Also, various laws place limits on or create liability for biometric information. For instance, many states have laws that make employers liable for properly maintaining the security and integrity of systems and processes containing employee personal information.
New York has additional laws that prohibit employers from fingerprinting employees, unless required by law. Illinois and Texas are among the many states that already have laws regulating the collection and use of biometric data.
Outside of the United States, however, some countries--including Canada--require employers to use biometric data to ensure privacy.
Along with facing legal challenges to using biometrics in the workplace to identify, authenticate, track, and monitor staff, employers are facing objections from employees, unions, and advocacy groups voicing privacy and other concerns.
For instance, the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Consol Energy, Inc., and Consolidation Coal Company in West Virginia federal court in 2013, alleging religious discrimination in connection with the use of biometric technology for timekeeping.
In the case, an Evangelical Christian employee believed that submitting to a workplace hand scan had a connection to the "Mark of the Beast," as reference in Revelations in the Bible. The employee asked the company to accommodate his religious beliefs by allowing him to track his time via a more traditional manual time recording system.
The company refused, and the employee filed a charge with the EEOC that ultimately resulted in the lawsuit. In October 2014, after more than a year of litigation, both sides filed motions asking the court to rule in their favor rather than allowing the case to proceed to trial. In January 2015, a federal jury found Thursday that the company violated antidiscrimination law by failing to accommodate the employee's religious objection to the biometric system. The jury awarded the employee $150,000 in compensatory damages.
In other cases, individuals were unsuccessful in challenged the requirement to provide fingerprints for background checks based on the same "Mark of the Beast" theory. What set the Consol Energy case apart was that the company allegedly accommodated requests from two employees who were missing fingers and made alternative arrangements for these indidivuals who could not use the hand scanner but would not accommodate the religious-based request.
In the past, employees rarely objected to having their picture taken for the company's identification badge. But since technology has become so savvy, employees often challenge biometrics requests for security and privacy sake--often because of a failure on the part of the employer to inform individuals about what the process involves, and what can and cannot be done with the biometric data.
For example, a federal court in Florida recently ruled that it's not a violation of the Americans with Disabilities Act (ADA) to require employees to submit to biometric screening as part of a wellness program. However, the EEOC has filed another case in Wisconsin that alleges an employer violated the ADA by requiring employees to submit to biometric testing as part of a wellness program
Although different from claims involving the use of biometric data for timekeeping or other purposes, these cases show that challenges to an employer's collection or use of biometric data can come in a variety of ways. Employers should therefore be prepared to face these issues in connection with the use of biometrics. They should also be careful to consider any objection or request for accommodation.
Additional challenges await. For instance, there is a conflict between discrimination laws restricting the right of employers to requested biometric data and Affordable Care Act provisions that encourage employers to use employee biometric data to encourage employees to improve their health.
Based on these concerns, employers should notify all employees--in writing--of the company's intent to use a biometric system. This notification should include the reasons why the company is taking this approach, including what safeguards will be provided and what an employee should do if he or she has questions or concerns about the system.
Additionally, if the company is unionized, employers should give the union sufficient notice of the intention to implement a biometric system to verify its right under any collective bargaining agreements.
Employers should also implement strict security policies and procedures that will ensure all biometric data will be securely stored and safeguarded.
Furthermore, employers should check all applicable privacy and other potentially relevant laws before implementing the system as the laws on the books in this area can quickly change, as can the interpretation of existing laws. Employers also need to be ready to consider accommodations or requests from employees who may raise issues based on disability, religious beliefs, or other areas protected by law.
With emerging technology, it's safe to assume that biometric systems in the workplace will become increasingly popular. As with any new technology, they will bring challenges and new opportunities. But overall, the consensus among businesses using biometric systems is that the advantages of the technology outweigh the disadvantages.
C. R. Wright is a partner in the Atlanta office of Fisher & Phillips LLP whose practice includes advising clients on labor and employment issues, handling employment-related litigation, and presenting training seminars for managers and supervisors.