Biometric time-clock systems have become a popular way for companies to track employee hours accurately. By using fingerprint scans, facial recognition, or other biometric scanners, these timekeeping systems promise better record-keeping and fewer payroll errors.
But as employers embrace this technology, they’re also facing a growing wave of privacy litigation. Illinois led the way with its landmark Biometric Information Privacy Act (BIPA), which sparked an explosion of BIPA lawsuits over how employers collect and store biometric data.
Now, similar lawsuits are spreading beyond Illinois, with states adopting their own privacy laws and courts grappling with questions about employee privacy, consent requirements, and employer liability.
This article explains why these lawsuits are multiplying, how other states are following Illinois’ lead, and what employers need to know to avoid legal exposure.
What Is Biometric Data?
Biometric data refers to unique biological or behavioral characteristics used to identify individuals. In the workplace, common forms include:
- Fingerprint scans used in time clock systems
- Facial recognition for access control or attendance
- Iris scans or hand geometry systems
Biometric identifiers are highly sensitive because they are permanent. Unlike passwords, you can’t change your fingerprint or face if stolen. That raises serious data security and privacy compliance concerns.
The Appeal of Biometric Time-Clock Systems
Employers often adopt biometric time clocks to:
- Reduce buddy punching (where one worker clocks in for another).
- Improve record-keeping for payroll.
- Speed up the clock-in and clock-out process.
- Ensure workplace monitoring with precise timekeeping systems.
For employers, these systems can cut costs and improve efficiency. But they also involve sensitive data collection that brings privacy law obligations.
Illinois’ BIPA: The Law That Started It All
Illinois was the first state to regulate biometric data with its Biometric Information Privacy Act (BIPA), passed in 2008.
BIPA requires private employers to:
- Provide written notice explaining data collection practices.
- Obtain informed consent before collecting biometric information.
- Establish and follow a data retention policy.
- Protect biometric data with reasonable security.
Critically, BIPA gives individuals the right to sue for violations—even without proof of harm. This private right of action has fueled thousands of BIPA lawsuits, many as class action lawsuits, against employers using biometric time-clocks without proper notice and consent.
The Explosion of BIPA Lawsuits in Illinois
Employers in Illinois have faced massive liability over biometric scanners and time clock systems that failed to comply with BIPA’s strict rules.
Plaintiffs have won significant settlements and judgments over:
- Failure to get informed consent before collecting fingerprint scans.
- Inadequate notice requirements about how biometric information would be used.
- Poor data security measures.
- Keeping biometric data longer than necessary.
These cases have highlighted the need for privacy compliance in employer policies and triggered wider legal scrutiny of biometric time clocks.
Lawsuits Spreading Beyond Illinois
While Illinois remains the center of biometric privacy law litigation, similar privacy lawsuits are emerging in other states. Several trends are fueling this spread:
1. New State Laws
Other states are enacting or considering laws inspired by BIPA. For example:
- Texas and Washington already have biometric privacy laws with consent requirements, though they lack BIPA’s private right of action.
- California’s CCPA/CPRA includes biometric information in its definition of personal data, giving employees privacy rights and requiring certain notice requirements.
- States like New York, Maryland, and Massachusetts have proposed bills regulating biometric data collection.
Employers in these states may soon face obligations similar to Illinois.
2. Expanding Common Law Claims
Even without dedicated statutes, employees in other states have brought lawsuits under:
- Invasion of privacy theories
- Negligence claims for poor data security
- Breach of contract over employer policies that promised confidentiality
Courts in some states have been open to these claims, making employer liability possible even without a BIPA-style law.
3. Class Action Strategies
Plaintiff’s attorneys have developed playbooks for class action lawsuits over biometric time-clocks, targeting large employers with uniform policies that failed to secure employee consent or follow notice requirements.
As these strategies succeed in Illinois, they’re being tried in other jurisdictions.
The Consent Challenge for Employers
A central issue in these lawsuits is consent requirements. Under Illinois’ BIPA and other laws, employers generally must:
- Give clear notice about data collection, use, and storage.
- Obtain informed consent before collecting biometric information.
- Allow employees to understand real world consequences of sharing their biometric data.
Many times, clock systems were rolled out without properly informing workers, leading to massive legal exposure.
Data Security and Retention Obligations
Beyond consent, privacy laws require:
- Strong data security measures to prevent breaches.
- Retention policies that limit how long biometric data is kept.
- Proper record keeping about compliance.
Failing to protect biometric data can lead to lawsuits over data breaches, even in states without biometric statutes.
Employer Liability and Penalties
Employers face steep risks:
- Statutory damages under laws like BIPA (often $1,000 or $5,000 per violation).
- Class action lawsuits with hundreds or thousands of affected workers.
- Costs of privacy litigation, settlements, and legal fees.
- Damage to company’s reputation and employee trust.
Employers must treat biometric time clocks as high-risk data collection tools that require careful planning and compliance.
How Employers Can Reduce Legal Exposure
Employers using or planning to use biometric time clocks should take proactive steps:
1. Review Employer Policies
- Create clear employer policies about biometric data.
- Explain acceptable and lawful use of biometric scanners.
- Ensure policies cover notice requirements and consent procedures.
2. Get Informed Consent
- Provide written notice explaining why biometric data is collected.
- Obtain explicit, informed consent from each employee.
- Make consent voluntary where required.
3. Strengthen Data Security
- Encrypt biometric information.
- Limit access to authorized personnel.
- Regularly audit data security practices.
4. Establish Retention and Deletion Policies
- Define how long biometric data will be kept.
- Delete data when no longer needed.
- Communicate policies clearly to workers.
5. Train Employees and Managers
- Remind employees about privacy practices.
- Train employees handling biometric data on legal obligations.
- Promote professional responsibility in workplace monitoring.
Compliance Beyond Illinois
Even if your company operates outside Illinois, you should:
- Monitor emerging privacy laws in your state.
- Follow best practices for privacy compliance.
- Prepare for potential claims under common law invasion of privacy or breach of contract theories.
- Consider employment attorney guidance for legal compliance across states.
As more states pass biometric privacy laws, waiting to act could mean facing legal liability later.
Need Help? Bourassa Law Group Can Assist
If you’re an employer rolling out biometric time-clock systems, facing a privacy lawsuit, or wanting to improve compliance with privacy laws, Bourassa Law Group can help.
Our experienced attorneys understand employment law, privacy compliance, and the growing risks of biometric data litigation. We can review your employer policies, design effective consent procedures, and help you avoid costly legal exposure.
Contact Bourassa Law Group today to protect your business and your employees’ privacy.
Conclusion
Biometric time-clock scans have revolutionized timekeeping systems, but they come with serious privacy law obligations. Illinois’ BIPA has led to thousands of lawsuits, showing how failing to secure informed consent, provide notice, or protect biometric data can expose employers to massive penalties.
Now, as lawsuits spread beyond Illinois, employers everywhere must pay attention. By adopting strong privacy compliance measures, securing employee consent, and updating employer policies, companies can embrace new technology without sacrificing employee privacy or risking damaging legal liability.
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