Partner Jack Lord was quoted about the legal risks of biometrics for businesses in the Daily Business Review article, “’You Better Be Paying Attention’: Attorneys Discuss Collision of Biometrics and Law.”
“Frankly, there will be a time when this is so common that it’s going to be negligent not to use biometrics,” said Lord, who noted that finger scans are already popular among his clients. “Maybe even in 20 years we’re going to be at that stage.”
But biometrics are not without risk. Some companies are microchipping employees (with consent), and there can be valid reasons to do so – something that companies already do through employee cell phones. But Lord notes that there can be privacy issues with microchipping because it can allow businesses to track employees outside of the workplace. “Yes, an employer can say, ‘We’re going to turn it off and not track you,’ but come on,” Lord said.
Lord also noted that some states have already created consumer and workplace laws to address the unknown implications of biometrics. And in states that don’t yet have these laws, Lord said businesses may open to common law invasion of privacy claims. For that reason, Lord recommends businesses always obtain consent before collecting and storing any data on employee health or genetics and also thinking before considering selling the data.
“Class actions in this area would be a real risk because obviously you’re bound to get more than one claim,” Lord said. “If you’re doing it wrong, it’s going to be across the board.”