Employer-mandated biometric screening is an emerging area of the law that is increasingly controversial. Two recent opinions are shaping how employers collect this data and what they do with it.
Employers’ use of biometric data has been increasing in recent years as employers seek creative new ways to counteract ballooning health care costs by motivating employees to take responsibility for their health. The specific components of these programs vary widely, with employers rewarding employees with various additional employment benefits based on improvements to cholesterol levels or blood pressure, the reduction of nicotine usage, or other factors.
COLLECTING THE DATA
Participation in these programs takes time. As a result, one employer recently sought clarification from the Department of Labor (DOL) on whether their employer-sponsored programs should be considered working time under the Fair Labor Standards Act (FLSA).
On August 28, 2018, the DOL issued an opinion letter providing that FLSA does not require employers to compensate employees for their voluntary participation in employer-sponsored biometric screenings and wellness activities. The DOL determined that these activities primarily benefit the employee, not the employer, and are not considered working time under the FLSA.
The program which was reviewed by the DOL was not mandatory and was not related to the employee’s job. The tests and activities occurred both during and outside work hours and included in-person health education, participation in online health coaching and classes, participation in Weight Watchers, and voluntary fitness activities (among other activities).
The DOL concluded that the activities provided a direct benefit only to the employees. In reaching their conclusion, the DOL noted that:
- The programs are entirely voluntary and not required by the employer;
- The employee is relieved of all job duties while participating in the activities; and,
- The employer does not restrict the amount of time the employee spends participating in the activities.
However, the DOL also noted that work breaks of up to 20 minutes are ordinarily compensable, regardless of how employees spend their time during the break. If an employer provides all employees with a compensable 20-minute break, the employer must compensate the employees for that break, even if the employee chooses to participate in a biometric screening, wellness activity, or benefits during that time.
SHARING THE DATA
Meanwhile, in Chicago, Southwest Airlines has received at least some temporary relief from a lawsuit initiated by employees over Southwest’s decision to share its employees’ fingerprints without their consent.
According to the ramp agents, Southwest required all employees to scan their fingerprints on biometric devices to verify their attendance and clock in and out of work each day. However, the airline failed to comply with the Illinois Biometric Privacy Act, which provides that a company may not collect or store an Illinois resident’s biometrics without obtaining written consent from the person and informing them in writing of the specific purposes for the information and length of time the information will be stored.
Southwest shared its workers’ biometric data to unknown third-party vendors without their consent, the suit said.
In an August 23 order, U.S. District Judge Marvin E. Aspen dismissed the suit, finding the workers’ claims were not preempted by the Illinois biometric privacy law but were subject to mandatory arbitration under the terms of their collective bargaining agreement with the airline.