Northern Exposure

Can Employers Use Biometrics in Their Canadian Workplaces?

by Lisa Chamandy

Employers in Canada are beginning to use biometric scans to replace traditional lock-and-key or card-swipe systems. Sensors record fingerprint-like information, and computers transform the data into a mathematical formula, usually comprised of 0s and 1s.

The system then deletes the image, keeping only a template corresponding to 2 percent of the fingertip. It’s the formula, not the fingerprint-like image, that’s stored in the system’s computers.

Even though using biometrics isn’t the same as storing an employee’s fingerprint, employees and unions don’t like it. They argue that biometrics invades employees’ privacy rights and, in some cases, their human rights. But they may be starting to lose their fights.

In a recent case in Ontario, a milk producer introduced biometrics. It wanted to eliminate the possibility of one employee “punching in” for another – buddy-punching.

The union didn’t like the biometrics and complained to an arbitrator. The union argued that:

  • buddy-punching was not a serious problem at the plant;
  • there was therefore no demonstrated need for biometric scans;
  • the union was not consulted about the biometric scans;
  • future technology could lead to the possibility of converting the mathematical representation into a fingerprint; and
  • the employer could use a “less scary, less intrusive”, electronic, nonbiometric system just to improve the time-management system.

The employer was not unreasonable. It acknowledged that the biometric system involved some invasion of privacy but argued that:

  • the benefits outweighed any invasion of privacy; and
  • the management rights clause in the collective agreement didn’t limit the rights of the employer to implement a biometric system.

The arbitrator agreed with the employer. The arbitrator said that the elimination of buddy-punching (even though not a serious problem in the company) was enough of a legitimate business reason for implementing the biometric system. It was enough to outweigh any intrusion into the employees’ privacy rights, which was, in any event, minimal.

Employers in Canada should therefore be in a position to show the following in order to successfully implement biometric scanning:

  • that the collective agreement doesn’t prevent it;
  • that there is a legitimate business purpose;
  • that there is minimal infringement on privacy rights; and
  • that the benefit outweighs any infringement on privacy rights.

But the analysis can’t stop there. Employers must also be aware of privacy legislation, which varies province by province. Quebec’s privacy legislation, for example, deals directly with biometric scanning. It says that employers must:

  • obtain the employee’s express consent;
  • collect only the minimum required measurements;
  • destroy the record once the purpose for the collection has been met; and
  • give prior notice to the privacy commissioner if a biometric database is created.

Other provinces don’t have such privacy legislation.

Employers must also be aware of human rights legislation. Some employees have been successful in arguing that biometrics violates their religious beliefs. In that case, reasonable accommodation may be required.

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