Capturing the time employees’ work can be a difficult business. In addition to the complexity involved with accurately tracking arrival times, lunch breaks, overtime, etc. across a range of federal and state laws (check out our Wage and Hour colleagues who keep up on all of these issues), many employers worry about “buddy punching” or other situations when time entered into their time management system is entered by a person other than the employee to whom the time relates. To address that worry, some companies have implemented biometric tools to validate time entries. A simple scan of an individual’s fingerprint, for example, can validate that individual is the employee whose time is being entered. But that simple scan can come with some significant compliance obligations, as well as exposure to litigation as discussed in a recent Chicago Tribune article.

The use of biometric data still seems somewhat futuristic and high-tech, but the technology has been around for a while, and there are already a number of state laws addressing the collection, use and safeguarding of biometric information. We’ve discussed some of those here, including the Illinois Biometric Information Privacy Act (BIPA)which is the subject of the litigation referenced above. Notably, the Illinois law permits individuals to sue for violations and, if successful, can recover liquidated damages of $1,000 or actual damages, whichever is greater, along with attorneys’ fees and expert witness fees. The liquidated damages amount increases to $5,000 if the violation is intentional or reckless.

For businesses that want to deploy this technology, whether for time management, physical security, validating transactions or other purposes, there are a number of things to be considered. Here are just a few:

  • Is the company really capturing biometric information as defined under the applicable law? New York Labor Law Section 201-a generally prohibits the fingerprinting of employees by private employers. However, a biometric time management system may not actually be capturing a “fingerprint.” According to an opinion letter issued by the State’s Department of Labor on April 22, 2010, a device that measures the geometry of the hand is permissible as long as it does not scan the surface details of the hand and fingers in a manner similar or comparable to a fingerprint. But, under BIPA, this distinction may not work in some cases. “Biometric information” means any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual, such as a fingerprint. As a federal district court explained: The affirmative definition of “biometric information” does important work for [BIPA]; without it, private entities could evade (or at least arguably could evade) [BIPA]’s restrictions by converting a person’s biometric identifier into some other piece of information, like a mathematical representation or, even simpler, a unique number assigned to a person’s biometric identifier. So whatever a private entity does in manipulating a biometric identifier into a piece of information, the resulting information is still covered by [BIPA] if that information can be used to identify the person.
  • How long should biometric information be retained? A good rule of thumb – avoid keeping personal information for longer than is needed. The Illinois statute referenced above codifies this rule. Under that law, biometric identifiers and biometric information must be permanently destroyed when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual’s last interaction with the entity collecting it, whichever occurs first.
  • How should biometric information be accessed, stored and safeguarded? Before collecting biometric data, companies may need to provide notice and obtain written consent from the individual. This is the case in Illinois. As with other personal data, if it is accessible to or stored by a third party services provider, the company should obtain written assurances from its vendors concerning such things as minimum safeguards, record retention, and breach response.
  • Is the company ready to handle a breach of biometric data? Currently, 48 states have passed laws requiring notification of a breach of “personal information.” Under those laws, the definitions of personal information vary, and the definitions are not limited to Social Security numbers. A number of them include biometric information, such as Connecticut, Illinois, Iowa and Nebraska. Accordingly, companies should include biometric data as part of their written incident response plans.

The use of biometrics is no longer something only seen in science fiction movies or police dramas on television. It is entering mainstream, including the workplace and the marketplace. Businesses need to be prepared.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.