By Erin Dougherty Foley and Karla Grossenbacher

Seyfarth Synopsis: In this hot topic webinar, on Thursday, November 16, 2017, we will discuss how to avoid becoming the next target in a lawsuit concerning the collection and retention of biometric data. There is no cost to attend this program, but registration is required.

In the past two months, at least 32 class action lawsuits have been filed relating to biometric privacy. These suits target a number of industries – everything from companies in the restaurant and hospitality businesses to nursing homes and major social media giants. If you use biometric technology in your company, you need to make sure you are not the next to make the headlines.

Recently, and particularly in the state of Illinois, there has been an uptick in litigation related to the collection and retention of biometric information by businesses, If your company uses any form of biometric technology, such as a biometric timeclock, biometric package tracking or any kind of employee or customer facing biometric technology, you need to make sure you are in compliance with applicable law. This webinar will discuss each of the state laws governing the collection and storage of biometric information, the requirements for businesses, best practices for compliance.

Be sure to register if you wish to attend this webinar. If you have any questions, please contact events@seyfarth.com.

By Karla Grossenbacher and Christopher W. Kelleher

Seyfarth Synopsis:  A string of recent class action lawsuits regarding businesses’ use of employees’ biometric data should put employers on heightened alert regarding compliance with various state biometric privacy laws.

As biometric technology has become more advanced and affordable, more employers have begun implementing procedures and systems that rely on employees’ biometric data. “Biometrics” are measurements of individual biological patterns or characteristics such as fingerprints, voiceprints, and eye scans that can be used to quickly and easily identify employees.  However, unlike social security numbers or other personal identifiers, biometrics are biologically unique and, generally speaking, immutable.  Thus, unlike a bank account or a social security number, which can be changed if it is stolen, biometric data, when compromised, cannot be changed or replaced, leaving an affected individual without recourse and at a heightened risk for identity theft.  Given the serious repercussions of compromised biometric data, a number of states have proposed or passed laws regulating the collection and storage of biometric data.  And plaintiffs’ attorneys are taking notice, as the number of class action lawsuits in this area has surged in recent months.

Currently, there are three states that have statutes regulating the collection and storage of biometric data: Illinois, Texas, and Washington.  In 2008, Illinois passed the Biometric Information Privacy Act (“BIPA”).  Texas followed suit in 2009, and Washington passed its biometric privacy law in 2017.

Covered Biometric Data. All three laws place restrictions on the collection and storage of “biometric identifiers,” such as eye scans, fingerprints, and voiceprints. However, BIPA and the Washington law also cover data that is converted into some type of code or template.  In addition to biometric identifiers, BIPA applies to “biometric information” which is “any information, regardless of how it is captured, converted, stored, or shared,” that is “based on an individual’s biometric identifier” and is “used to identify an individual.”  The Washington law places restrictions on the “enrollment” of biometric identifiers, which is defined as “capturing” a biometric identifier or “convert[ing] it into a reference template.”  Therefore, in Illinois and Washington, if an employer converts an employee’s biometric identifier into a mathematical code or other template and retains only the code or template and not the underlying biometric data, the employer must still meet the laws’ requirements with respect to the collection and storage of that information.  The Texas law only protects biometric identifiers and does not contain a broader “biometric information” provision.

Notice and Consent. All three laws require employers to provide notice and obtain consent before collecting and storing biometric data. BIPA requires the employer to obtain a “written release,” but the Texas and Washington laws do not specify that consent must be given in writing.  BIPA further specifies that, in the employment context, a written release is one  “executed by an employee as a condition of employment.”  This language is significant for employers who routinely collect and store biometric information of employees and are struggling with what to do if an employee refuses to provide consent.

Washington’s law also contains an exception the others do not: The law’s notice and consent provisions do not apply to biometric data collected and stored by an employer for “security purposes,” which is defined in the statute as biometric data that is stored for “the purpose of preventing shoplifting, fraud, or any other misappropriation or theft of a thing of value.”

Standard of Care. All three laws require that employers exercise reasonable care to protect biometric data: BIPA specifies that employers should use a “reasonable standard of care within the industry, and in a manner that is the same as or more protective than the manner in which the business stores, transmits, and protects other confidential and sensitive information.”  The Texas law similarly requires employers to store, transmit, and protect the data from disclosure using reasonable care and in the same way the company treats other confidential information. Washington’s law requires employers to take reasonable care to guard against unauthorized access to and acquisition of biometric data.

Retention. Each of the laws has requirements concerning when, and in some cases how, the biometric data must be destroyed: BIPA’s requirements are the strictest, dictating that employers must establish a written, publicly available policy that contains a retention schedule for biometric data and guidelines for “permanently” destroying the data.  BIPA has the most stringent retention requirements in that it states the information must be destroyed when the purpose for obtaining such data has been satisfied or within three years of the individual’s last interaction with the employer, whichever occurs first.  The Texas law requires only that employers destroy biometric data “within a reasonable time,” but not later than one year after the biometric data is no longer needed.  In Texas, if biometric data was collected for “security purposes,” the purpose for collecting the data is presumed to expire on termination of the employment relationship.  Finally, Washington’s law requires employers to retain biometric data “no longer than is reasonably necessary” to comply with certain legal requirements and to provide the services for which the biometric data was collected.

Cause of Action. All three laws provide civil penalties for violations, but BIPA is the only one of the three laws that provides a private right of action that allows for plaintiffs to recover liquidated damages and attorneys’ fees. In Texas and Washington, only the state attorney general may bring suit to enforce those laws.  It is this distinction that accounts for the fact that lawsuits filed under the Illinois law have been grabbing headlines as of late.

Biometric Data in the Other 47 States. Several other states (including Alaska, Massachusetts, Montana, and New Hampshire) have introduced similar legislation with varying levels of success. But even in states where no law governing the collection and storage of biometric data exists, employers should still take caution when collecting and storing biometric data because the practice could lead to invasion of privacy or negligence claims.

Best Practices. In addition to obtaining prior written consent from employees for the collection and storage of biometric data, employers should consider doing the following:

  1. Have a written policy in Illinois and distribute to employees along with the written release form. BIPA requires a business in possession of biometric data to have a publicly available, written policy stating the business’s retention schedule for the data and rules governing its destruc­tion — and the business must adhere to such policy. Thus, employers in Illinois need to make sure they have such a policy.
  2. Ensure biometric data is not sold or disclosed. All three laws generally prohibit a business from selling, leasing, or otherwise disclosing biometric data it collects or possesses. Companies should ensure that neither the company nor any vendor storing biometric data on the company’s behalf sells or discloses the data in violation of these laws. The laws contain exceptions to this prohibition on disclosure where the individual consents to the disclosure, the disclosure completes a financial transaction requested by the individual, or the disclosure is permitted by law, order or warrant. Again, outside of Texas, Washington, and Illinois, reasonableness would dictate that an employer should not disclose an employee’s biometric data to others without consent under an invasion of privacy or negligence analysis.
  3. Have protocols for protecting biometric data. Employers should protect biometric data in the same manner as they do with other confidential and sensitive information in their possession. Protocols for protecting biometric data can be covered in a general information security policy or in a specific biometric data policy.
  4. Have appropriate provisions in vendor contracts to protect biometric data. In contracts with vendors who store or collect biometric data on behalf of an employer, employers should require that the vendor comply with applicable laws governing the collection and storage of biometric data and provide the same level or higher level of protection to the data that the employer does. The employer should also retain the right to request information on the vendor’s information security protocols, conduct periodic audits of the vendor’s security protocols, and to be notified in the event of any breach or suspected breach of the biometric data the vendor holds for the company (regardless of whether such notification is required by a breach notification statute).
  5. Comply with applicable data breach notification statutes in the event biometric data is compromised. Biometric data is considered “personal information” under a number of state data breach notification laws, including Illinois, Iowa, Nebraska, New Mexico, North Carolina, Wisconsin and Wyoming. Employers storing biometric data (and their vendors) must follow the requirements of these laws with regard to informing affected individuals of breaches/suspected breaches.

With biometric privacy legislation pending in Massachusetts and New Hampshire, and the passing of a biometric privacy law in Montana in 2018 a virtual certainty, we have only just begun to see the impact of this type of privacy legislation. Stay tuned.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team.

 

By: Elizabeth McKeeGabriel Mozes and Jason E. Burritt

Seyfarth Synopsis: The U.S. Department of State has recently issued a new supplemental questionnaire that will enable officers at U.S. Consulates and Embassies to carry out enhanced and burdensome screenings of certain applicants for nonimmigrant and immigrant visas to the U.S.

As part of the Trump Administration’s extreme vetting efforts, certain visa applicants will now be required to complete a rigorous supplemental questionnaire prior to visa issuance. The information requested in the new, supplemental questionnaire is extensive, and requires disclosure of the applicant’s full travel history for the past 15 years, including locations visited, dates, and source of funds for the visits; all passport numbers; names and dates of birth of all siblings, children, and spouses/partners; complete address and dates of residence for the past 15 years; employment history for the past 15 years; and all social media handles, phone numbers and email addresses for the past 5 years.

To view the full alert, please click on the link below:

http://www.seyfarth.com/publications/OMM061617-LE

 

 

By Karla Grossenbacher

Over the past several years, technology has dramatically increased employee accountability in the workplace. For example, in an office environment, employees are expected to respond to emails immediately because they are either sitting in front of their computers or carrying a mobile device on which they can access their email.  As for employees who work outside the office, the availability of employer-issued phones and, alternatively, the proliferation of BYOD policies, has resulted in off-site employees being generally just a phone call away.  In specific industries in which employees drive motor vehicles while conducting business for the employer, yet another method of accountability exists: Global Positioning Systems (GPS).

For businesses that provide transportation or delivery services, it is not surprising to find that such employers have installed GPS devices in the vehicles used by their employees. The use of such devices can benefit both the employer and the employee in situations in which delivery status needs to be checked or a vehicle breaks down.  In all likelihood, the employee in these situations is aware that a GPS device has been installed on the company vehicle he or she is driving and that the employee’s movements are being tracked while on duty.  Privacy issues tend to arise, however, when employers use GPS data in connection with investigating  alleged misconduct in the workplace.

There cases in which courts have addressed the legal parameters of an employer’s use of GPS devices to track workers in order to investigate potential misconduct are few but nonetheless instructive.

In Elgin v. Coca-Cola Bottling Co. (E.D.Mo. 2005), the employer attached a GPS device to a company-owned vehicle used by the employee to service vending machines after a cash shortage was reported on a number of machines.  Although the employee was cleared of any wrongdoing in the investigation, when he found out that a GPS device had been installed on the company vehicle he drove during the investigation, he filed a claim for intrusion upon seclusion under state law.  The court rejected this claim, noting that the vehicle was owned by the employer and the only information potentially revealed by the alleged “intrusion” was the whereabouts of the company vehicle.  In another case, Tubbs v. Wynne Transport (S.D. Texas 2007), the court dismissed an invasion of privacy claim against an employer who had used information gathered by a GPS device that had been installed as a matter of course on a company-owned vehicle driven by the employee to perform his duties as a truck driver.  The court did not, however, provide any substantive analysis regarding its decision to dismiss the claim.

Elgin and Tubbs both involved employers attaching GPS devices to company-owned vehicles.  The balance between the employer’s interest in rooting out misconduct and the employee’s individual privacy rights shifts, however, when an employee’s personal vehicle is at issue — even if it is used for work purposes.  In Cunningham v. New York Department of Labor (NY Ct. App. 2013), a state employee was under investigation for falsifying time records and voucher information related to work travel and had used his personal vehicle during work hours in connection with some of the suspected misconduct.  As part of its investigation into the alleged misconduct, the employer had a GPS device installed on the employee’s personal vehicle to gather information about his movements during periods in which he was suspected of misconduct.  The employee was ultimately discharged and filed suit to exclude the GPS data from evidence at his disciplinary hearing based on federal and state constitutional grounds.

The New York Court of Appeals held that installation of the GPS device on the employee’s personal vehicle was an unreasonable search under constitutional law principles. Although the Court held the search was reasonable at its inception because the employer had a reasonable suspicion that the employee was engaging in workplace misconduct, the search was unreasonable in its scope because it had not been designed to obtain only the information the employer needed to determine if workplace misconduct had occurred.  Rather, the employer had monitored the employee’s personal vehicle 24/7, as opposed to only during working hours, and made no attempt to remove the device prior to the employee’s scheduled vacation.  The Court concluded that “[w]here an employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours, the search as a whole must be considered unreasonable.”

However, the extent to which a personal vehicle is used for work purposes can alter the analysis. In two cases involving the revocation of a New York City taxi cab driver’s license for over-charging passengers, two New York city state courts held that taxi drivers had no legitimate expectation of privacy in GPS data gathered from the Taxi Technology System (TTS) installed on the cabs.  The court also held that, even if the drivers had a legitimate expectation of privacy in the data, the city had a legitimate interest in determining whether or not the driver was overcharging passengers and had narrowly tailored its search to obtain information from the TTS only during the driver’s work hours.  In these two cases, even though the cabs were personally owned by the drivers, the court found that the cab drivers had limited privacy rights with respect to the vehicles because they were open to public use and subject to regulation by the state.  The regulatory authority required that all city cabs have the TTS equipment installed and drivers were required to use the system to transmit information regarding location, trip and fare information to the regulatory authority.

The takeaway from these cases is that, although an employer appears to be on solid ground attaching a GPS device to a company-owned vehicle and using data gathered by the device in an investigation of workplace misconduct, especially where the employee is aware the device is on the vehicle and the information is only being gathered while the employee is on duty, caution should be taken in attaching a GPS device to a personal vehicle used by the employee for work purposes. Employers also need to be mindful of complying with state laws regarding electronic surveillance.  California, Connecticut, Delaware and Texas all have laws requiring either notice or consent prior to placing a GPS on another person’s motor vehicle.

As the foothold of technology sinks deeper into the terrain of the workplace, the privacy issues confronted by employers will only grow in complexity. However, courts have been reticent about making broad pronouncements about the intersection of law and technology in the workplace.  As the Supreme Court stated in United States v. Kwon, a case involving a state employer’s review of an employee’s text messages on a state-issued pager, “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role society has become clear.”  This restraint, while understandable, can leave employers with unanswered questions about how to balance the competing interests of legitimate business needs and individual privacy concerns in the workplace, particularly where technology is involved.   Perhaps in 2016, the courts will offer more guidance in this area.  Stay tuned.

Data privacy issues keeping you awake at night?  Our colleagues, part of Seyfarth’s Global Privacy and Security Team (GPS), are here to help shed some light on this increasingly more complex body of law.  See the blog posted here.  Also, please consider joining us up for an upcoming webinar, on September 22, 2015, that will address Information Security Policies and Data Breach Response Plans.