Biometrics and New Privacy Concerns

A recently filed class action suit in Illinois could be the signpost for “a new employment law frontier,” according to at least one law firm.

As recently reported by Holland & Knight, a class action suit pending in the U.S. District Court for the Northern District of Illinois centers around the state’s Biometric Information Privacy Act, which was passed in 2008 to prohibit the gathering and keeping of individuals’ biometric information without his or her prior notification and written permission.

In Baron v. Roundy’s Supermarkets Inc., et al., the plaintiff alleges that the supermarket chain violated BIPA by failing to meet the legal requirements to obtain and retain employee fingerprints the company used for timekeeping purposes.

Holland & Knight attorneys called biometrics an “emerging area” of employment law, as more employers begin to use the technology to log employees’ hours. Damages available under laws such as BIPA make this fertile ground for class actions as well. For each violation of BIPA, a prevailing party may recover the greater of actual damages or $1,000 for negligent violations of the Act, the attorneys note, adding that plaintiffs may recover the greater of actual damages or $5,000 for “reckless or intentional violations.”

With legislation comparable to BIPA already on the books in Texas, and states including Alaska, Montana, New Hampshire and Washington considering similar bills, employers would be wise to tread carefully when and if they introduce biometrics to their places of business.

“Laws like BIPA will become more relevant to employers and of increasing interest to the plaintiffs’ bar as the use of biometric data, such as the use of fingerprints or thumbprints for timekeeping purposes, becomes more prevalent in the workplace,” according to Holland & Knight.

“With the increasing awareness of such laws by the plaintiffs’ bar, it is important that employers using or considering the use of biometric data in the workplace ensure compliance with any state or local laws governing the use, retention and destruction of that data.”