Internationally, courts are becoming stricter when it comes to the use of biometric clocking systems, claiming that it infringes employees’ rights. Recently, the National Labour Court ruled that, in relation to a biometric time & attendance system , a person’s fingerprint constitutes ‘private/personal information’ and that the use of a biometric attendance system infringes an employee’s right to privacy.
“The Protection of Personal Information Act, No 4 of 2013 (PoPI), which was enacted in November 2013, similarly regards biometric data as personal information. PoPI regards personal information as information relating to an identifiable, living, natural person including, but not limited to, biometric information of the person. In fact, PoPI regards biometric information as ‘personal information’, which category of information attracts a prohibition on processing, unless, among other things, the individual has given their consent.”
Though this act has not yet been fully implemented, with only those provisions in force that permit the establishment of the regulator, it gives thought to certain considerations that an employer may need to take into account when implementing these biometric systems in the work place. The main purpose is to give effect to the right to privacy by protecting personal information. It prescribes conditions for how a responsible party, or in this case an employer, must process private information that is in their own possession. The process has to comply with the eight conditions specified in the Act to be lawful.
• Accountability: An employer must appoint an information officer and register that person with the information regulator.
• Processing limitation: Processing of personal information must be lawful and done in a reasonable manner that does not infringe the employee’s privacy.
• Purpose specification: Collection of personal information must be for a particular and lawful purpose, related to a function or activity of the employer.
• Further processing limitation: An employer will require the employee’s consent should it wish to use the employee’s personal data for any secondary use.
• Information quality: An employer must ensure that the employee’s personal information is complete and accurate.
• Openness: An employer collecting personal information, such as an employee’s fingerprint data, must take reasonable steps to ensure that the employee is, inter alia, aware of the information being collected and the purpose for which it is collected.
• Security safeguards: An employer must secure the integrity and confidentiality of personal information in its possession or under its control by taking appropriate measures.
• Data subject participation: An employee is entitled to be informed what personal information of his or hers is in the employer’s possession.
The holder of personal information is expected to take the required steps to ensure information security, in line with recent industry standards, and to secure that information from the moment it is captured until it is destroyed.
The risk with biometric data, and specifically where it is stored on a central database, is that it can be hacked. There have been a number of large scale breaches. When biometric security is compromised, the damage is ever-lasting. Employees can change passwords and access cards following a data breach, but they cannot change their fingerprint.