Biometric identifiers—fingerprints, retinal scans, facial recognition—are not brand new technologies, but they’re once again under the spotlight.
In light of nationwide protests against police brutality sparked by the death of George Floyd in May, many companies—including IBM, Amazon and Microsoft—announced they would no longer allow law enforcement agencies to use their facial-recognition technologies, which have become in-demand policing tools in many major cities. (IBM went as far as to say it was abandoning its research and development in the field entirely.)
In the construction industry, biometrics—especially facial-recognition technology—are on the rise: In 2018, U.K.-based Human Recognition Systems released a report indicating that usage of biometrics on construction sites had increased by 59% to more than 975 contracts since 2016. The technology is being marketed as a foolproof way to ensure that workers are present and working on the jobsite, as well as a way to increase security.
On the surface, both of these claims seem reasonable, but the biometric identifiers are so personal and so immutable that employers should think long and hard before jumping on the bandwagon. Likewise, employees should demand transparency, privacy and a good explanation of why biometrics are required on the jobsite at all.
A wage fraud solution?
Many of the companies that make biometric security systems for the workplace claim that the technology can be used to reduce wage fraud. Among the targeted culprits: “buddy punching,” which refers to when a worker clocks in for an absent friend.
With traditional time-logging systems, this can be as easy as punching or swiping an extra card or logging into a computer with someone else’s credentials. Biometrics offer a way to log employees’ attendance that cannot be gamed with buddy punching.
Lewis Maltby, head of The National Workrights Institute and a former lawyer for the ACLU specializing in workplace privacy, said that automated surveillance shouldn’t be the solution for preventing wage fraud.
“Any manager who needs a video camera to know who came to work doesn’t know what they’re doing,” he said. “If the first-line supervisors aren’t telling their boss who didn’t show up for work that day, the boss has a much bigger problem than absenteeism.”
The main issue with using biometrics, according to Maltby, is security: “If someone steals your passcode for your ATM, you get a new passcode. If an employer’s computer has every employees’ face or fingerprints in it, and someone hacks the computer, what are we going to do about identity theft? We can’t give people new fingerprints or a new face.”
In addition to being a huge risk for workers, storing biometric data can also pose legal risk to employers. “They can be held liable if the information wasn’t stored securely or if it can be shown that they were culpable for the breach,” said Edgar Ndjatou, executive director at Workplace Fairness, a nonprofit that specializes in employee rights.
There are plenty of existing alternatives to biometric attendance trackers for construction sites. A traditional digital login system that requires a long and complex passcode, for instance, will make it much more difficult for coworkers to clock in for one another. GPS tracking systems embedded in an ID card or other sensor can also clearly show who is at work and where they are, while not requiring employees to give up their unique biometric signatures to employers.
Finally, with wage fraud, while buddy punching is certainly a real problem—the American Payroll Association estimates that the practice inflates gross payrolls by as much as 2.2% annually—the majority of wage fraud committed in the construction industry doesn’t occur from workers stealing from a contractor. Instead, it comes from contractors stealing money from workers by using strategies like worker misclassification to avoid paying taxes or overtime.
While some have argued that biometrics could protect workers from this type of theft by creating a payroll record that is timestamped with a picture, employers are already finding ways to cheat this system: Between 2014 and 2017, New York-based Parkside Construction and its payroll company, Affinity Human Resources, stole $1.7 million from more than 500 employees despite the fact that the company was using facial-recognition software.
Because the employer owns and operates the software, Affinity Human Resources was able to alter the records to reduce the number of hours employees had clocked.
A more secure construction site?
Yes, biometrics can make a construction site more secure. And yes, these systems can be used to automatically track where workers are moving and ensure they’re properly credentialed. They may even provide insights into workplace movement that enable new efficiencies and unanticipated benefits.
But much of this can be accomplished with GPS trackers that don’t offer the same gleaming prize to hackers and identity thieves.
Where biometrics really shine is in preventing unauthorized personnel from accessing extremely sensitive material. “I would never argue against putting a camera in a bank vault or a storage area in a jewelry store, or wherever they keep the cash in a department store,” Maltby said. “But why do you need a new camera on a construction site? Why do you need a camera during the daytime when your workers are all there? You think your workers are going to steal the equipment?”
Maltby said if employers are considering adding a new layer of security, they should ask themselves what has changed to make the expansion necessary: “What happened that you need video cameras that you never needed before?”
Ndjatou agrees it’s not wrong to value security but urges employers to weigh that priority against the rights and well-being of their employees. “How can we accomplish these goals without infringing on employees’ privacy or the appearance of being big brother?” Ndjatou said.
Worker’s rights
Unfortunately, if you’re a worker on a jobsite and your boss wants to add biometric timeclocks or security to the jobsite, your options are limited. Ndjatou urges employees to ask questions about why these systems are being installed, how the data will be stored and, perhaps most important, for how long.
But both he and Maltby stressed the importance of doing so carefully. In a world of at-will employment, workers can be fired for virtually any reason, and it is well within an employer’s rights to request facial and retinal scans and fingerprints from employees.
Only a few states—Illinois, Washington and Texas—offer workers any protection from giving up biometric identifiers, and even these are scant. In Illinois, which has perhaps the most robust legislation on the topic, The Biometric Information Privacy Act (BIPA) mandates that employers must gain written consent before obtaining biometric data and also must inform employees how the data is being used and how long it will be stored.
Because these are state laws, they often don’t hold up in Federal Court. But last year the Illinois Supreme Court did uphold BIPA in a landmark case, Rosenbach v. Six Flags.
“The core principle of American law is that anybody can do anything that they want to unless there’s a law that says they can’t,” Maltby said. “You have no rights as an employee unless Congress or the state legislature gave them to you. Congress and state legislatures haven’t done much on biometrics.”
While Americans consistently claim they value privacy in polls, Maltby said the reason for the federal inaction is that they don’t complain about privacy to their legislators. “They talk about the war in Iraq and the economy; the wall in Mexico and 100 other subjects,” he said, “but constituent input on workplace privacy is screamingly quiet.”
Until that changes, the only guaranteed option for an employee who doesn’t want to give up their fingerprint or their face: quit.
