Employers using timeclocks that use employee finger or hand scanning technology to clock in and out may have heard about a recent surge of class action litigation asserting that such technologies are covered by the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”). Since July 2017, more than 30 such lawsuits have been filed against employers operating in Illinois. In general, these cases allege that the defendant employers violated BIPA by failing to obtain written releases signed by their employees before collecting, storing and using biometric identifiers and information; as well as failing to make disclosures and have certain policies related to the use and storage of biometric identifiers and information.
ADP’s biometric timeclock attachments do not collect, store, or use fingerprints. Instead, during the enrollment process, the timeclock attachment scans the employee’s fingerprint, and stores and uses an encrypted mathematical representation of that fingerprint. ADP’s biometric timeclock attachments do not collect, store, or use an actual fingerprint.
It is not yet resolved whether the timeclock finger and hand scan technology involves the collection, use or storage of “biometric identifiers” or “biometric information,” as those terms are defined in the statute. However, at the time of writing of this article, no court has yet held that BIPA applies to the use of such timeclocks.
Practical Impact
Biometric technology can be useful as a way of providing more accurate means of identifying employees clocking in and out at time clocks. Employers wishing to leverage biometric technology as part of a workplace solution should understand that use of this technology may be subject to certain compliance requirements. For example, employers in Illinois and New York should obtain employee consent before using a time clock with biometric technology. In addition, Illinois also requires businesses to implement policies related to the storage, transfer and retention of the information.
Clients who have concerns with these requirements may opt to disable biometric functionality, or to use different technology in certain locations. For clients who choose to employ biometric technology for employees working in Illinois, a sample biometrics policy and sample employee consent form can be found in your forms library in the state appendix section. A sample consent form for New York is also available. ADP’s Biometric Information Policy can be found here.