SPRINGFIELD — A growing number of U.S. companies are turning to measures like biometric tools to validate time entries and other forms of tracking an employee's movements and actions. And as technology rapidly changes, it has also sparked a surge of litigation over data collection methods, and the levels of protection dedicated to electronically-gleaned data.

A simple scan of an employee's fingerprints can conclusively validate a worker and who they are signing in as, seemingly doing away with employer concerns such as "buddy punching."

Still, the issue remains perplexing for employers, who now must face potential lawsuits, as well.

In Illinois, for instance, the Biometric Information Protection Act allows individuals to sue over alleged violations, leaving some companies exposed to "liquidated damages" of as much as $5,000 per violation, along with attorney and expert witness fees. 

"People become more nervous as breaches happen," Joseph Lazzarotti, an attorney at the New Jersey office of law firm Jackson Lewis, told the Cook County Record. "There has not been a lot of case law on the issue, and the Illinois law is unique. In the end, some companies might try to find different ways of timekeeping."

In the meantime, Lazzarotti advises companies that still rely on the technology to take precautions, including making sure they don't keep any personal information for longer than needed and by obtaining written consent from targeted individuals prior to collecting any data. 

"Employees need to understand tech and what it does," Lazzarotti said. "They need to think of that before just dumping on employees. They need to work to have employees embrace the process."

In Illinois, both the parent company of Mariano's supermarkets and the Intercontinental Hotel Group have been hit with class action lawsuits alleging they improperly collected and stored employee fingerprints and other biometric data.

Presently, 48 states have enacted laws requiring notification of a breach of "personal information." From state to state, the definition of personal information varies, but is largely not limited to just Social Security numbers. Laws in Illinois, Connecticut, Iowa and Nebraska also include biometric information. 

Mounting confusion aside, Lazzarotti predicts that such technology will continue to grow as it becomes even more convenient. 

"It's much easier to put a thumb on everything and not have to remember passwords," he said. "With that, you're likely to see more laws in more states."

Meantime, Lazzarotti is closely monitoring developments in biometric technology, including an employer in Wisconsin that recently offered to implant a microchip in employees to help with time tracking and plant security. 

"Some have raised the question of, if that might lead to medical conditions, or the matter of what happens when an employee leaves and how much monitoring is too much," Lazzarotti said. "Employees need to always be vigilant with data and remember that nothing is completely secure. Tech helps us to be more productive, but we also have to be concerned about making people more comfortable with it."

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Jackson Lewis P.C. State of Illinois

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