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Increasing Use of Biometric Information Raises Legal Issues for Employers

    Client Alerts
  • November 11, 2022

Earlier this week, Amazon announced new technology that will allow shoppers at its Whole Foods stores to check out using a scan of their palm. These emerging biometric identifying technologies are also attractive to employers due to the efficiency and security available for tasks such as recording working time and acknowledging receipt of notices. Employers considering the use of biometric identifying systems should carefully consider the legal ramifications of introducing these technologies into the workplace.

While there are currently no federal statutes regulating employers’ use of biometric information, a number of states have recently implemented laws regulating these practices. Illinois was an early adapter of such a law, and that state has become a hotbed for class action lawsuits alleging that employers failed to obtain employees’ consent to collection and storage of their biometric data. A similar New York law requires employee consent before collecting or using fingerprint information.

Most of these laws focus on obtaining informed consent from employees asked to use biometric scanning technology. In addition, companies can be liable for data breaches that involve this personal identifying information. In states without biometric information laws, employees have alleged religious discrimination against employers who refuse to exempt them from collecting such information. Some of these claims involve allegations that collecting fingerprints or similar information constitutes the “Mark of the Beast” and therefore violates their sincerely held religious beliefs.

Employers considering the implementation of such technologies should carefully plan for their use. This planning should include obtaining written informed consent from employees, writing clear policies that explain the collection and use of biometric information, and establishing procedures to assure the security of such information. Employers should also determine how they will respond to employee requests for exemption from such information collection. These legal issues and legislative changes are likely to increase as these technologies become more widespread.