Advanced technologies are making their way into the workplace with no signs of slowing down. Handwritten employee time records and schedules are being replaced by more sophisticated systems and technologies.
One such technology is biometrics. Biometric technology measures and analyzes individuals’ biological data to identify and authenticate employees, track productivity, improve security, and more. Popular forms of biometric systems include finger and hand scanning, facial and voice recognition, and iris scanning, among others. While companies’ use of biometrics may rarely be challenged by consumers (for example, to gain entry to an amusement park or tanning bed), employees are more likely to view the use of their biometric data as a dangerous and unnecessary intrusion. Employers should therefore be prepared for resistance when biometrics are introduced into the workplace.
“Often, the fear is that the data could be stolen or misused. However, much of this fear is unfounded and can be reduced by properly explaining the technology.”
Workplace biometrics are increasingly popular in response to the rising tide of wage and hour claims against employers under the Fair Labor Standards Act (FLSA). With the volume and monetary risks of FLSA claims continually increasing, biometric technologies, such as finger or hand scanning devices, can help employers reduce employee fraud. For example, by using biometric data to identify employees and authenticate time records, employers can better enforce timekeeping policies and procedures and make it more difficult for employees to engage in “buddy punching” (when employees get co-workers to record inflated or inaccurate hours worked). Additionally, as employers look for better ways to protect their workforces and capital, provide increased security, restrict access to specific areas, and track employee whereabouts at any given time, improvements in biometric technology can be used with keyless locks to track employee access and activity more accurately.
As biometric technology becomes more common in the workplace, employees, unions, and others increasingly object to its use. They argue that the technology is too invasive, a violation of privacy, or easily compromised. Often, the fear is that the data could be stolen or misused. However, much of this fear is unfounded and can be reduced by properly explaining the technology and informing the employee that what is stored by the system is only a comparison model from which his or her actual individual characteristics cannot be reproduced.
Employers frequently ask what they can do when an employee objects and will not provide the requested biometric data. One possibility is termination of employment. The “employment-at-will” doctrine allows employers to terminate employment for any reason, as long as it is not an illegal reason. Absent legislation or other restrictions providing that an employee cannot be fired for refusing to provide biometric data ensures that an employer has the right to terminate any individual who refuses to comply. While termination of employment may be permissible, additional factors should be considered before taking action.
One factor to consider is the potential for unlawful discrimination claims under federal, state, or local laws. In 2013, the U.S. Equal Employment Opportunity Commission filed a lawsuit against Consol Energy, Inc., and Consolidation Coal Company, alleging unlawful discrimination on the basis of religion under federal law. Based on his religious beliefs, an employee objected to providing biometric data for a biometric hand scanner. The employee requested a religious accommodation and, although the employer previously provided an accommodation for two disabled employees, the religious accommodation request was denied. The case went to trial, and the jury found in favor of the employee, awarding $150,000 in compensatory damages. The judge awarded an additional $436,860.74 in back- and front-pay damages.
While appeals are pending, the nearly $600,000 decision shows just how important it is for employers to be fully versed on potential issues prior to implementing a biometric system.
Advanced technologies in the workplace, including biometrics, are here to stay. It is imperative that employers do their homework and be prepared for the challenges associated with the evolving use of biometrics in the workplace.
Biometric Data in the Workplace
Potential risks and legal considerations.
Related Articles
The Litigation Finance Mass Tort Gold Rush
by Justin Smulison
Third-party litigation funding is transforming mass torts, propelling the high-risk area into a multi-billion-dollar industry
IN PARTNERSHIP
Trial Lawyers Fight to Protect Individuals from Abuse
by Esquire Bank
With Esquire Bank's financial support, Elise Sanguinetti was able to challenge and end the Forced Arbitration Act. Her legislation continues to help other trial lawyers attain justice for abuse survivors.
Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias
by Sloan L. Abernathy
Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?
Biometric Points of Contention
by Gregory Sirico
The collection of individuals' biometric data via smartphones, facial recognition software and more—presents a challenge to consumers, lawyers and legislators.
IN PARTNERSHIP
Staying Power
by Justin Smulison
Laurie Webb Daniel is a veteran appellate advocate for high-stakes litigation practicing in Atlanta, Georgia, at a firm she co-founded, Webb Daniel Friedlander.
Protecting Small Business Owners: Trial Experts Connick Law LLC Notoriously Successful with Fire Litigation
by Justin Smulison
When small business owners become the target of insurance companies in fire-related lawsuits, hiring a firm with a reputation for understanding the science of fire suppression trials can save their livelihoods.
Will Recent Boeing Settlements Create Tailwinds In Corporate Law?
by Justin Smulison
Prominent litigation against Boeing is setting a precedent of accountability, professionalism and commitment among company boards as well as ushering ESG further into the courtroom to help monitor and prevent safety issues.
Colorado's Best Lawyers 2022
by Best Lawyers
Our 2022 Colorado's Best Lawyers publication features top-ranked legal talent in Boulder, Denver and Western Colorado.
Newly Launched COVID-19 Litigation Project Offers Open Access To Pandemic-Related Court Judgments From Over 70 Countries
by Sara Collin
A worldwide database of COVID-19 cases is uniting more than 70 countries as judges, lawmakers and lawyers continue to navigate pandemic related litigation and the ways in which it’s evolving amid year three.
Look for the Zoom Label
by Matthew C. Lonergan and Anne R. Yuengert
Will the virtual platforms that got such a boost during the pandemic replace how you interact with your employees, unions, and lawyers?
Discovery in the Time of COVID-19
by H. Barber Boone
The pandemic has affected the vital process of legal discovery in ways both good and bad. Which changes are likely to become widely accepted in the years ahead?
Busting a Trust
by Joseph Marrs
The rules governing trusts and asset distribution are often much more flexible than many might assume. Here’s a primer.
The Next Chapter
by Patrick M. Shelby
Among its uncountable other disruptions, the pandemic upended U.S. bankruptcy procedures. Congressional relief, legislative changes, amended legal provisions: What lies ahead for those looking to file?
Phoning It In
by Ashley C. Pack, Crystal S. Wildeman and Alyson M. St. Pierre
It’s not easy for employers to weigh requests from employees to work from afar, even in the wake of the pandemic. Considerations include COVID-19, vaccinations, the Americans with Disabilities Act and the nature of the job itself.
Trending Articles
Introducing the 2026 Best Lawyers Awards in Australia, Japan, New Zealand and Singapore
by Jennifer Verta
This year’s awards reflect the strength of the Best Lawyers network and its role in elevating legal talent worldwide.
Discover The Best Lawyers in Spain 2025 Edition
by Jennifer Verta
Highlighting Spain’s leading legal professionals and rising talents.
Unveiling the 2025 Best Lawyers Editions in Brazil, Mexico, Portugal and South Africa
by Jennifer Verta
Best Lawyers celebrates the finest in law, reaffirming its commitment to the global legal community.
How to Increase Your Online Visibility With a Legal Directory Profile
by Jennifer Verta
Maximize your firm’s reach with a legal directory profile.
Paramount Hit With NY Class Action Lawsuit Over Mass Layoffs
by Gregory Sirico
Paramount Global faces a class action lawsuit for allegedly violating New York's WARN Act after laying off 300+ employees without proper notice in September.
The Future of Family Law: 3 Top Trends Driving the Field
by Gregory Sirico
How technology, mental health awareness and alternative dispute resolution are transforming family law to better support evolving family dynamics.
Effective Communication: A Conversation with Jefferson Fisher
by Jamilla Tabbara
The power of effective communication beyond the law.
The 2025 Legal Outlook Survey Results Are In
by Jennifer Verta
Discover what Best Lawyers honorees see ahead for the legal industry.
Safe Drinking Water Is the Law, First Nations Tell Canada in $1.1B Class Action
by Gregory Sirico
Canada's argument that it has "no legal obligation" to provide First Nations with clean drinking water has sparked a major human rights debate.
The Best Lawyers Network: Global Recognition with Long-term Value
by Jamilla Tabbara
Learn how Best Lawyers' peer-review process helps recognized lawyers attract more clients and referral opportunities.
New Mass. Child Custody Bills Could Transform US Family Law
by Gregory Sirico
How new shared-parenting child custody bills may reshape family law in the state and set a national precedent.
Jefferson Fisher: The Secrets to Influential Legal Marketing
by Jennifer Verta
How lawyers can apply Jefferson Fisher’s communication and marketing strategies to build trust, attract clients and grow their practice.
Finding the Right Divorce Attorney
by Best Lawyers
Divorce proceedings are inherently a complex legal undertaking. Hiring the right divorce attorney can make all the difference in the outcome of any case.
The Future of Canadian Law. Insights from Best Lawyers: Ones to Watch Honorees
by Jennifer Verta
Emerging leaders in Canada share their perspectives on the challenges and opportunities shaping the future of Canadian law
