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Employers warned about privacy safeguards for biometric attendance systems

|Written By Heather Gardiner

Employers need to adhere to the privacy protocols surrounding biometric attendance systems for their employees, says one employment lawyer. 

Biometric attendance systems allow employers to keep track of the number of hours

Employment lawyer Barbara Stratton says if employers are going to use biometric attendance systems, they need to notify their employees and explain how their personal information is going to be used.

their employees work by measuring their biological characteristics such as fingerprints, handprints or facial features, which are then used to identify them.

Since the systems record employees’ personal information, their use is subject to privacy legislation, says Barbara Stratton, a partner at Bennett Jones LLP in Edmonton.

As a result, employers need to let employees know they are going to collect this information, how it’s going to be used, and how they’re going to safeguard their privacy, she says.

The Office of the Information and Privacy Commissioner of Alberta has issued two investigative reports regarding biometric systems in the workplace. It found that the collection of employees’ personal information was reasonable but that both employers had breached their obligation under privacy legislation to notify employees about the information being collection and how it would be used.

Stratton wrote about the use of workplace biometric systems in a recent blog post. She says her review was initiated by a question raised by a small organization where the employer wanted to implement a system using fingerprints.

“It was unnecessary and it was excessive and there would be other systems that would be able to be used much easier,” she says.

Last fall, McCague Borlack LLP, a mid-size insurance boutique law firm in Toronto, announced its plan to implement a new security system that would scan administrative staff’s fingerprints to track their comings and goings. This new policy left some employees quite upset.

Stratton says biometric systems are more appropriate for large organizations like casinos. “As you can imagine, in a casino you’ve got possibly round-the-clock employees coming and going and it would be hard to really track their start and end times in a 24-hour day with some sort of reliable system,” she says.

“With the right employment environment where it’s really difficult to monitor an employee without something like [a biometric attendance system], then I think in those circumstances it would make sense,” she says.

“But in respect of a small employment operation where it’s more regular hours, not round the clock, then it doesn’t make any sense. It would be — in my view — excessive, unreasonable, and I would think that an employee may well be able to attack that system as a breach of their privacy.”

Stratton advises employers considering switching from the traditional timecard to a biometric system to take note of the commissioner’s reports.

  • Collection of Thumbprint and other personal social accounts

    Faith Love
    Can I legally decline submitting fingerprint and other personal information such as Facebook, Twitter, Instagram, Tumblr, email accounts for re-registration in our church (Church of Christ - Iglesia Ni Cristo)? Our Advisory Council are requiring us to have our thumbprints (left and right)to be provided as well as to provide those other social networking accounts, If we do not cooperate, they are threatening us for expulsion. This is on going now with our church and expelling members without the proper due process. Please I need your opinion on this. Thank you
  • David Cote
    There's no provincial privacy legislation in Ontario regulating contract relationships among non-govt'l parties so the Alta experience doesn't apply here. While privacy law is developing in Ont., even with decisions like Jones v. Tsige, I don't think think the common law would rule against an employer that implements such technology. Employers do need to be mindful of human rights law though. Some view this technology as discrimination on the basis of creed. I had a case where I represented a unionized employer that implemented a biometric scanning system, which the union grieved; claiming it violated the religious freedom of employees who believe the description about the mark of the beast on one's right hand, in the End of Days (I believe in Revelations). We settled the case by having employees' LEFT hands scanned. The take away? I've little doubt the Human Rights Tribunal would take seriously, an application under the Human Rights Code asserting discrimination because of creed.

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