The National Labour Court recently discussed in detail and ruled on the issue of whether an employer can require its employees to record their attendance by biometric fingerprinting.(1)

Facts

A municipality issued a directive stating that employee attendance must be recorded by biometric fingerprinting and that manual records were no longer acceptable. The municipality further declared that employees were unentitled to be paid for work performed unless their attendance was recorded by biometric fingerprinting.

The relevant union responded by ordering employees not to cooperate with the directive and demanded that the employer negotiate its demands with union representatives. The employer refused this request and held back salary payments due to employees who had not recorded their attendance by biometric fingerprinting.

The union motioned the National Labour Court to:

  • order the municipality to pay any outstanding salaries forthwith; and
  • declare that:
    • obliging employees to provide biometric fingerprints was unlawful and an infringement of the employees' constitutional right to privacy; and
    • the municipality had breached its obligations to consult with the union before taking any steps that could be detrimental to its employees.

Decision

The National Labour Court ruled that:

  • fingerprints are a person's private and personal information and therefore enjoy the constitutional and statutory protection afforded to the right of privacy;
  • fingerprints are part of a person's body and enjoy the constitutional and statutory protection afforded to the right of autonomy;
  • fingerprints are a unique and unalterable characteristic of each person and potential damage in the event that fingerprints are leaked or used for purposes extraneous to the purpose for which they were provided (eg, for monitoring employee attendance in the case at hand) could be irrevocable;
  • taking fingerprints constitutes an infringement of personal privacy and autonomy;
  • an employer cannot lawfully demand that its employees provide their fingerprints;
  • in the absence of a statutory provision allowing fingerprint taking, an employee must provide his or her free and informed consent for the taking of fingerprints to be lawful;
  • consent will not be considered free and informed unless the employee has been provided with all of the relevant information pertaining to the taking of fingerprints and the taking, storing and use of fingerprints is regulated by a detailed and transparent policy document which complies with the stringent requirements of good faith, reasonableness and proportionality – to be agreed with the employee representative body (if applicable) and brought to the attention of the employees in advance;
  • although employers may lawfully record employee attendance, recording attendance by biometric fingerprinting raises separate issues that must be provided for separately. Employers cannot rely on a general provision requiring the recording of attendance to implement fingerprinting employees;
  • the issue of whether a collective agreement regulating the use of biometric fingerprinting for recording attendance can substitute individual consent had not been resolved; and
  • the issue of whether the storing of fingerprints by an employer constitutes a database which is subject to regulatory requirements had not been resolved.

The municipality was prohibited from:

  • requiring its employees to record their attendance by biometric fingerprinting and ordered to erase any fingerprints that it had taken; and
  • penalising employees who refused to provide their fingerprints.

For further information on this topic please contact Shoshana Gavish at S Horowitz & Co by telephone (+972 3 567 0700) or email (shoshanag@s-horowitz.co.il). The S Horowitz & Co website can be accessed at www.s-horowitz.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.