Asking an employee to share their tax ID number with their employer is a reasonable request, but asking them to share their fingerprints may be excessive.
In a recent case that reached the courts, the labor board supported an employee who claimed that his dismissal was unfair by Superior Wood because he refused to participate in the company’s biometric data collection. The process was billed as a way to improve the payroll system, and he was one of hundreds of staff who refused to use the new system.
In the original decision last November, the labour commission dealt with the unfair dismissal case and sided with the employer, with commissioner Jennifer Hunt finding it was a legitimate workplace attendance policy. She said it was “necessary” for the business to introduce the new system.
Protecting personal data from hackers is a growing concern for employees. A recent report states that in this case, up to six separate entities had access to the data. These are Superior Wood, the companies that registered the data, the entity that operated the related server, and the system that processed Superior Wood's payroll.
“There is no evidence to suggest that any of these entities had, at the relevant reporting time, any mechanism in place to protect and manage the information Superior Wood collects from its employees’ fingerprints. The concerns expressed by the employee were not, in our view, unfounded,” the labor committee report states. It turns out, legally, that the employee had every right to be concerned.
Michael Byrnes, a law firm partner, said it is the employee's prerogative to refuse to withhold this information.
“If an employee is intentionally insufferable, that’s a problem. On the other hand, if an employer asks an employee to hand over sensitive information via fingerprinting, the employer should make reasonable efforts to convince the employee that the information is going to be handled in a way that preserves its confidentiality,” Byrnes says.
Superior Wood failed to provide that assurance. The company acknowledged that it did not have a privacy policy and did not provide employees with notice of the privacy collection. As such, it violated its obligations under the Privacy Act, which was a big reason why the labor board reversed its original decision. Byrnes says that the use of biometric data collection may be appropriate in a situation where health and safety are key issues, but even then he stresses the need to provide appropriate privacy policies and ensure the security of employee data.
To support the dismissal decision, Superior Wood had to prove that the fingerprints were necessary, which it ultimately was unable to do.
