An increasing number of employers are expressing interest in using biometric technology in the workplace. For example, a company concerned that employees are clocking one another in and out of work could implement retinal scanning technology to authenticate the identity of the person making the time entry. From the legal perspective, most litigation involving biometrics has focused on an Illinois statute that provides a private right of action against employers that do not provide notice and consent for collection and use of such information. However, employers in states without specific laws can also face legal claims relating to use of biometric data. 

In 2013, the Equal Employment Opportunity Commission sued an employer that declined to provide a religious accommodation for an employee who claimed that the company’s hand-scanning technology could be used by the Antichrist to identify persons with the “Mark of the Beast.” More recently, employees have expressed concerns that employers could discover their medical conditions through use of biometric screenings. Information obtained through a hand scan, for example, could be used to determine if an employee suffers from arthritis. The Americans with Disabilities Act and Genetic Information Nondiscrimination Act restrict employers’ collection and use of employee medical information.

While these laws do not prohibit use of biometric screening technology, employers should set clear policies with regard to the collection and preservation of such data. Information gathered should be narrowly tailored to the specific purpose sought by the company. Preservation and disposal of such information should be carefully determined, with access limited to specific authorized persons within the organization. Employees asked to provide biometric information should be provided details about how their information will and will not be used by the employer.

A number of states have adopted laws regulating use of biometric information and more are showing interest in similar legislative measures. Employers considering implementing biometric screening technology should determine the scientific, legal, and employee relations impacts before rolling out the new procedures.

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