A Wingstop franchisee in Illinois is being sued for violating his employees’ biometric privacy rights. In the suit, the employees allege the owner obtained their fingerprints without their written permission. They also allege the owner never made its biometric collection and storage intentions publicly available as required by the Illinois Biometric Information Privacy Act. The employer used the fingerprints to track each employee’s time.
We are seeing more and more of this fingerprint/biometric privacy litigation as we just recently wrote in November here. New York employers should follow this trend of litigation closely as New York has long had a similar law.
New York law provides no employee, as a condition of securing employment or continuing employment, shall be required to be fingerprinted. This does not mean employers are outright prohibited from using biometric timeclocks. Instead, New York employers are required to obtain the employee’s voluntary consent for use of fingerprints for a timeclock. Employers can achieve this by having each employee sign an acknowledgement confirming (1) the employee knows the employer is using a biometric timeclock and (2) the employee voluntarily agrees to this practice. For employees who do not volunteer, employers must provide a legal alternative.
Employers, however, may question whether the efficiency created by this technology is worth the potential risk and headache. Identity theft claims are becoming more and more prevalent. In the event of a data breach, the penalties can be quite costly.
It is up to you decide what makes the most sense for your business. Either way, this type of litigation is not going away any time soon and New York employers must ensure compliance with the law. We suspect it is only a matter of time before a similar claim is filed in New York as we continue to see this litigation sweep the country.
Brody and Associates regularly advises management on complying with state and federal employment laws including privacy laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
Additionally, if this article generated any additional questions for you, please contact us at info@brodyandassociates.com. We may address your question in a future blog post.
