News & Articles

Published on Tuesday, March 6, 2018

Workplace Monitoring Technology Getting Too Close for Comfort

For each advancement in work monitoring technology, personal privacy dissipates, and legal concerns grow. Security cameras, computer software that monitors keystrokes and computer use, and key fob sensors are now considered old compared to what is now available.

As an example of new technology coming on line, reports are that Amazon has won patents for wristbands that employees in their warehouses and distribution operations will wear and the technology will record and report worker hand movements as they pick and place ordered products. What’s next? Chip implantation under worker skin that manages worker access to secured areas, gives or denies them access to certain offices, and serves as an easy payment method at food courts.

What about privacy rights? Today when a person agrees to become an employee of an organization that utilizes these advanced work monitoring programs, the employee accepts the employer’s conditions for employment. Those employers requiring monitoring will give notice that as an employee you agree to conditions that allow for monitoring in some way.  HR professionals already understand that an employer policy may allow any company equipment used by employees to be searched. Also, employers may monitor work activity through GPS devices that can be required on vehicles used for company business. Employees agree to these terms and conditions when employment is accepted. So why couldn’t employers venture into the next dimension of employee tracking?

Biometric data is the measurement and recording of employee data. The data measured are the unique physical characteristics of an individual such as fingerprints, irises, retinas, hand geometry, and facial and voice patterns. Proponents of this technology maintain it cannot be replicated, stolen, or reverse engineered. Current popular uses of biometrics in the workplace are for tracking hours and controlling access to secure areas as mentioned above.

Employee fears around the use of biometric data collected by employers is that it’s being stored and may be used un-solicitously by the employer or some other outside party.  However, what a biometric scanner really does is encrypts and stores a mathematical representation of, say, a fingerprint. In turn, it creates a biometric template that is used as a record to identify the said employee’s fingerprint in the future. Biometric scanners do not store an image of the fingerprint. It stores the characteristics of the fingerprint in binary form. It cannot be duplicated, decrypted, or reconverted to an image in these systems.

Employers engaging these programs are advised to 1.) communicate they are not storing the personal data; 2.) check for regional laws in place and keep an eye on legislation; 3.) implement policy on the use of the biometric system and the storage and safeguarding of such data; 4.) if a union is present, give it notice and be prepared to negotiate over it; and 5.) be ready to consider an accommodation for employees that raise disability or religious belief issues.

Although employers have the right to engage these new systems, some states such as Illinois have passed laws that govern the collection and the use of this information. These laws have resulted in employee lawsuits claiming violations by the employer. The lawsuit alleges notice to employees was lacking or weak and no permission was requested for collection of the data.

Other areas of legal contention surrounding the use of biometrics is religious discrimination. The Equal Employment Opportunity Commission sued Consol Energy on behalf of an employee with strong conviction against scanning, believing it was the “Mark of the Beast” as referenced in the Book of Revelation. The company refused to accommodate his religious beliefs and allegedly forced the employee’s retirement. It did not consider other acceptable methods of time keeping (one’s it had given to other employees due to hand injuries), and a Court awarded the Plaintiff over a half million dollars in back pay and damages. The Fourth Circuit Court of Appeals affirmed this award in June of last year.

New technology development will continue to provide employers a myriad of ways it can better track and improve work, heighten security, and even compel heathier lifestyles to name just a few purposes. Employers need to also keep an eye on the wrongful employment actions that may go hand in hand with the use of these developments.

 

Sources: The Debate About Biometric Technology in the Workplace. Fingercheck. Katherine Muniz 12/21/2015; Column: Workplace monitoring gets personal, and employees fear it's too close for comfort. They're right Robert Reed Chicago Tribune 2/2/18; Using Biometrics In The Workplace Fisher Phillips Newsletter 1/16/2014; Court Awards Over Half Million Dollars Against Consol Energy/Consolidation Coal In EEOC Religious Discrimination Lawsuit EEOC Press Release 8/27/2015

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