Employees sued a national supermarket chain alleging that the employer violated the Illinois Biometric Information Privacy Act (BIPA) when it failed to satisfy the notice requirements for obtaining and keeping employee fingerprints used for timekeeping purposes. The potential damages are significant, especially for bigger employers. Under BIPA, a prevailing party may recover the greater of actual damages or $1,000 for negligent violations or $5,000 for reckless or intentional violations, plus attorney’s fees and costs.
As the use of biometric data like fingerprints and thumbprints for clocking in and out grows in popularity so does the potential for liability. Employers who use biometrics for timekeeping should be aware of the laws regulating the use of biometrics in each and every state where you operate. For example, Texas has a similar law to BIPA and other states like Alaska, Montana, New Hampshire and Washington are considering bills similar to BIPA.
What about California?
California employers will be pleased to learn that California does not have the same notice requirement as BIPA. However, California employers who require the submission of fingerprints and/or photographs as a condition of employment may not provide those fingerprints and/or photographs to third parties. Labor Code Section 1051 makes such disclosure a misdemeanor. So if you are ask applicants and employees for photographs and/or fingerprints, you need to have procedures in place to ensure their security and if you have third party vendors that you use for biometric timekeeping, make sure that they do not have access to or retain the fingerprints.
If you use biometric technology for timekeeping purposes and have questions, feel free to contact me or call 949.529.0007.
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