Legal Considerations When Using Biometric Clocks

Do you happen to use a Biometric Clock for your time labor management? Perhaps you are considering using this option for your employees to clock in and out of work. First, it is important to understand how biometric clocks use an employee’s fingerprint.

  1. Not all timeclocks store actual fingerprints – the clock scans the employee’s fingerprint and uses proprietary software to identify and store specific unique features from the fingerprint and then deletes the scan.
  • No fingerprints are kept on file, and the pattern of unique features used to identify each employee cannot be used to recreate a fingerprint.
  • This makes it impossible for the print to be reproduced or shared with anyone, including law enforcement and other government agencies.

State Laws

Currently, there are four states that have laws controlling the use of biometric clocks – Illinois, New York, Texas, and Washington.  It is critical that employers in these states be aware of these laws.

Illinois

The Illinois Biometric Privacy Act or BIPA, requires certain notifications and consent around biometric use.  It’s important for employers to understand that BIPA doesn’t prohibit the use or collection of biometric data.  However, it does require individuals be notified regarding the use of biometric data.

Employers can maintain compliance with BIPA by informing employees that biometric data is going to be collected.  They should explain the nature of the biometric data and how it works.  The purpose should also be explained so employees understand that biometric time clocks will only use biometric identifiers to identify an employee for time worked and not for other purposes.

Employers should notify employees regarding the length of time their data will be used and stored.  Usually this will be only for the length of the employment.  Biometric data should be deleted when the employee is terminated and deleted from the timekeeping system.

In Illinois, biometric data cannot be sold, leased or used for profit in any manner.

It cannot be shared without the employees consent unless its required by law or a search warrant requires it.

New York

New York Labor Law prohibits an employer from requiring an employee’s fingerprint unless it is required by law.  As a result, employers who wish to implement biometric time clocks can risk penalties if a fingerprint time clock is used.

There are two main ways that employers can implement a biometric time clock in New York and be compliant with the law.

First, employers can utilize a fingerprint biometric clock, but it must be on a voluntary basis.  Employers cannot require the use of the biometric clock and employees cannot be rewarded for using it or punished for choosing not to use it.

Employees involved in time theft are most likely to choose not to use a biometric time clock.

Second, employers can require the use of a biometric clock that does not scan the surface of the fingers or hands.  This means that a hand geometry time clock can be enforced by New York employers.  A hand geometry clock measures the fingers and width of the hand but does not scan any surface information.

Texas

In Texas, biometric information cannot be sold, leased, shared, or disclosed for commercial purposes unless disclosure is made to the individual.

Employers who use biometric information must inform employees of the use and nature of the biometric data.  This notice must include when and how the data will be shared with other.  It must also include a retention and destruction period.

Additionally, employers must protect biometric data with at least the same level of security that other sensitive information is kept and protected.

Texas’s law governs the actual biometric identifiers but does not cover systems that use other indicators from which the actual biometric identifier cannot be recreated. Since our time clocks do not store the actual fingerprint, they do not fall under Texas law.

Washington

Biometric data in Washington is protected against use for commercial purposes.  Washington defines commercial purposes as selling or marketing goods and services.

As a result, employers in Washington can use biometric time clocks and still be compliant with Washington law, but they can never sell or profit from that information.

Additionally, the law does not include hand geometry as part of a defined biometric identifier, so timeclocks using hand geometry clocks fall outside the law.

Alternatives

If an employee is not willing to have their biometric data recorded, there are alternative ways for the employee to clock in, including the use of a PIN or a proximity card.  At the time of this writing, all our clocks that support biometrics also support the use of PINs or proximity cards.

Summary

Regardless of state, employers should explain to their employees in writing why the company is requesting the employee’s biometric information, how the information is used, how it is stored and protected and how long the information will be retained.

In some states this explanation should include that the collection of this information is voluntary, and that an alternate method of clocking in is available.

If you are interested to learn more about Payroll Systems’ Biometric Time Clock solutions, fill out the form below!

Let's Chat

Leave a Reply

Your email address will not be published. Required fields are marked *