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Employers Need Permission to Collect Biometrics

Published on October 31st, 2019

Employers who collect biometric information such as fingerprints, face scans, or retina or iris scans from employees—or even customers—need to ask permission and explain why the data is being collected, or they could well face legal liability.

The Illinois Biometric Information Privacy Act (BIPA), which regulates how employers must handle biometric data, received a relatively liberal interpretation from the Illinois Supreme Court, which means that state-level lawsuits have wider latitude than federal ones—but even suits dismissed at the federal level can sometimes be refiled in state court.   The law remains in flux when it comes to what, exactly, constitutes biometric data.  Photographs are not considered biometric identifiers, for example, but a software application that collects facial scans could be—and even federal courts have allowed for relatively broad interpretations on this front, mindful of the galloping pace of technological advances.

The Illinois Supreme Court in January defined an aggrieved person as anyone whose information is collected without their consent or knowledge, even if they were not harmed in the process, in the case Rosenbach v. Six Flags Entertainment Corp. (2019 IL 123186), issued on January 25 of this year and previously detailed on this blog.   This means employers are liable for $1,000 in damages for each negligent violations and $5,000 for each intentional violations.  For example, if an employer fingerprints employees each day as they check in and out of the office, and does not notify employees of the collection and storage of these fingerprints, the business could be fined $2,000 per day per employee.  Perhaps not surprisingly, at least 90 class action lawsuits alleging violations of BIPA have been filed since January in Illinois state courts.

Federal courts have not been as hospitable to plaintiffs because at least some have required that employees prove an “injury-in-fact” under Article III of the U.S. Constitution. But others have ruled that a concrete injury can be established simply based on the employee unknowingly providing biometric data, or where the employer shared this information with a third party. But even when federal courts rule that a plaintiff lacks standing, if they remand or dismiss without prejudice, the case can be refiled in state court.

With all this in mind, employers would be well advised to have a number of policies and procedures in place to ensure that they’re staying in BIPA compliance:

  • Protect employee data in a systematic fashion, making sure you understand how and when biometric data is collected, stored, utilized and destroyed. The BIPA language talks about a “reasonable standard of care” and “in a manner that is the same as or more protective than” other confidential or sensitive information. To parse what this means, exactly, and whether they’re currently in compliance, employers will need help from both an attorney and an IT professional.
  • Make sure your employee handbook or comparable document lays out what biometric data is being collected and why, how it’s being used and where it’s being stored.
  • Put a policy in place that establishes how long biometric data is kept, when it’s destroyed, and when its purpose has been achieved, keeping in mind that BIPA requires data to be junked within three years of an employee’s last contact with an employer.
  • Obtain written consent from your employee for the collection, storage and use of their data, ideally upfront as a condition of employment.

Business owners should beware of the potential liabilities associated with using biometric data.   Taking these precautions should allow your business to gain the security-related and other benefits of biometric data without becoming a defendant in the next class-action lawsuit.

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