DEAR CARRIE: Our boss recently replaced our time clock with a fingerprint-reading machine. We are horrified that our fingerprints are going out over the Internet and are wondering if it is legal for him to force us to use the machine. Some of us are salaried and earn a fixed amount every week. So we particularly want to know if we can be forced to use the new time device. — Time Out?
DEAR TIME OUT: Believe it or not, New York law has broad prohibition against the fingerprinting of employees, with a few exceptions, said employment lawyer Richard Kass, a partner at Bond, Schoeneck & King in Manhattan.
Here is what section 201-a of state labor law says:
“Except as otherwise provided by law, no person, as a condition of securing employment or continuing employment, shall be required to be fingerprinted. This provision shall not apply to employees of the state or any municipal subdivisions or departments thereof, or to the employees of legally incorporated hospitals, supported in whole or in part by public funds, or private endowment, or to the employees of medical colleges affiliated with such hospitals or to the employees of private proprietary hospitals.”
In addition, the law requires fingerprinting for certain social-service employees, Kass said. And fingerprinting is allowed when employees agree to it voluntarily, without coercion, he said.
But it has to be truly voluntary, the Labor Department says. Employee complaints to the contrary could prompt a department investigation.
If you still think you might be off the hook as far as using the company high-tech timekeeper is concerned, read on.
“Even when fingerprinting cannot be compelled, employers can require employees to use other types of biometric timekeeping devices, for example, devices based on palm prints or iris scans,” Kass said.
And perhaps the former is what your employer has installed. But if the new time keeper reads fingerprints, that is a no-no, unless you work in one of the excepted businesses.
For the record, when employees are unionized, their employer may be required to bargain with their union over a new timekeeping system before implementing it, Kass said.
And he stressed that employers should make sure that the personal information obtained is secure.
“Employers who obtain biometric information from their employees must exercise reasonable care to make sure outsiders cannot gain access to it,” he said.
As for your privacy fears about the Internet, he said, you can relax.
“Most biometric timekeeping devices do not store or send an image of the employee’s entire fingerprint; so there may be less of a privacy problem here than the reader fears,” Kass said.
Lastly, as far as your status is concerned, whether you are exempt or paid hourly, your employer can still require you to clock in.
“Employers have the right to keep track of the working time of all their employees, even exempt ones,” Kass said.