Biometric Devices in Time Clocks May Violate N.Y. Labor Law

July 4, 2011

According to a recent New York State Department of Labor opinion letter, the use of biometric devices to record employees’ work time may violate N.Y. Labor Law.

Biometric time clocks record employees’ work time by scanning their hands each time they enter or leave the workplace (as opposed to punching a timecard of filling out a timesheet). The technologically-advanced time clocks that were the subject of this opinion letter interpreted (but did not store) biometric information from the employees’ fingerprints.

New York Labor §201-a prohibits employers from requiring employees be fingerprinted unless otherwise required by law. Under this section, according to the NYSDOL, it does not matter that the time clock does not actually store the employees’ fingerprints – just interpreting the fingerprints was enough to violate the Labor Law’s protections.

There does, however, appear to be several exceptions in which the use of biometric time clocks or similar devices would not violate NYLL §201-a:

Employees who are required by law to be fingerprinted (e.g., teachers) may be required to use a biometric time clock for timekeeping purposes, regardless of whether the device interprets the employee’s fingerprints.

Time clocks that “measure the geometry of the hand are permissible under the Labor Law so long as they do not scan the surface details of the hand and fingers in a manner similar or comparable to the scanning of a fingerprint.”

Nothing in the law prohibits the voluntary fingerprinting of employees. (Note that in order for fingerprinting to be voluntary, employers may not take any adverse employment action against employees who forego fingerprinting, or otherwise coerce employees to  get fingerprinted.)

New York employers using similar technologically-advanced timekeeping systems should learn more about the technology surrounding these devices and take steps to avoid unknowingly violating the Labor Law’s protections against mandatory fingerprinting.

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