Monitoring the workforce with fingerprint scanners can be unethical

Keeping track of how many hours the employees had worked is a difficult process, while it can be immoral in some cases. Recently, an employee in Germany working as medical-technical radiology assistant has refused to use the new fingerprint time-tracking system and continued to manually write down the worked hours on the old- and printed-time sheets.

   The company established this new system to ensure a completely correct time recording for accounting purposes and to be able to create a weekly duty roster that also corresponds to the employees’ wishes. This system uses a biometric fingerprint identification according to the data sheet provided to the employees.

   In an e-mail of July 27, 2018 to the employees, they were informed, enclosing a data sheet and a declaration of conformity, that the new time recording system would be put into operation as of August 1, 2018. It was pointed out that the system does not store fingerprints, only minutiae (coordination of the intersection points of a fingerprint).

   It means that it is not possible to read out the data due to appropriate protective measures, so that at the system (IT 8200 FP) there is only a record number and the corresponding minutiae. A reference to a natural person cannot be established.

   However, the employer issued several warnings to the employee (the first was on October 5, 2018) urging him to use the new system. It is important to mention that as of August 1, 2018, only the working times determined by time recording would be valid. This means that the monthly salary of 2,432.87 euros could not be delivered if this employee did not use the new system.

   On March 26, 2019, the employee received a second warning which threatened with the possibility of immediately terminating his employment if he continues to refuse using the fingerprint system. The plaintiff said that the fact that a system is manipulable is not sufficient, while noting that the FP system is not cheaper than a smart card system.

   German courts decided that the employer had to remove the warnings issued towards the employee, and that the employee was not obliged to use the fingerprint system and therefore did not violate his duties. In particular, the court concluded that the system was not considered to be necessary, despite the employer’s claims that the system could make it more difficult for employees to manipulate the records of working hours. The employer could therefore not rely on Article 9(2)(b) GDPR.

   Furthermore, according to Art. 4 No. 14 of the European Basic Data Protection Regulation (DSGVO), biometric data are all personal data obtained using special technical procedures, including data on the physical and physiological characteristics of a natural person that enables or confirms the unique identification of that natural person. This is the case with minutiae, that the company claimed unsuccessfully.

   The court stated that it is not evident that an objective, reliable, and accessible system requires the processing of biometric data of the claimant (or other employees). Notably, current technology allows for a wide variety of systems for recording working time (paper records, computer programs, electronic timecards).

   Finally, the court pointed to the fact that the employer had mentioned in July 2018 that if the time recording does not work employees should still write down the working hours, so that they will then be entered into the system later. Hence, companies must be flexible and prevent from creating a negative atmosphere and work conditions where the workforce feels uncomfortable, mere mean, and part of an unethical corporate system.