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Photographs and Fingerprints: Biometrics in the Workplace

It seems like almost every week some new exciting technology comes out that, even just five years ago, seemed like science fiction. Retinal scans, fingerprint scanners on our phones, and facial recognition software are a few examples that come to mind. And like most technologies, most of these find their way into the workplace in some form. So what obligations do employers have with regards to employees' biometric information (fingerprints, photographs, etc.)?

Labor Code section 1051 prohibits California employers from obtaining fingerprints or photographs from employees and then sharing that information to third parties. It is actually a crime (misdemeanor) if an employer violates this law. So, employers are allowed to collect employee fingerprint information, but they are absolutely restricted from sharing the information with other entities.

What about using fingerprints or handprints in time keeping systems? Employers would be wise to use caution. In light of the code section mentioned above, employers should take steps to ensure that the company providing the technology does not have access to employee biometric information. Care must also be taken to ensure that biometric information is not inadvertently disclosed to third parties. In this age of cyber-threats and hacking, it's not hard to imagine a scenario where this could happen.

Employee photographs have their own rules. Labor Code section 3344 prohibits the use of a person's "name, voice, signature, photograph, or likeness" in advertising or selling products without that person's prior consent. Penalties under this code section can be severe - the greater of $750 or the actual damages suffered by the person whose photo was used, as well as any profits attributable to the unauthorized use (plus the person's attorney's fees and court costs). Courts can also award punitive (punishment) damages as well. As such, before using any employee's name, voice, photograph, etc. in any sort of marketing or advertising, be sure to obtain the employee's written consent first.

I'm sure the next five years will bring more technological advances that will find their way into the workplace. And while it can be hard to keep up with new technology, the law requires that businesses do.

This article is for education and information purposes only; it should not be construed as legal advice. If you have an employment law question for inclusion in a future article, contact Brett T. Abbott at Gubler & Abbott LLP (bta@thecalifornialawyers.com). For specific employment law advice or other legal assistance, contact Gubler & Abbott LLP, (559) 625-9600, 1110 N. Chinowith St., Visalia, CA 93291 (www.thecalifornialawyers.com).

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