Biometric Privacy Compliance Essential for Employers Using AI in the Workplace

Introduction

As artificial intelligence (AI) adoption accelerates in workplace environments, employers increasingly deploy AI tools that collect and analyse biometric data to monitor safety, productivity, and compliance. A recent report from JD Supra highlights the critical need for employers to navigate and comply with biometric privacy laws across various US states and localities, emphasizing the legal risks of non-compliance. This report examines the regulatory landscape, case implications, and practical considerations for employers utilising AI with biometric capabilities.

Regulatory Landscape: Variability in Biometric Privacy Laws

Several states and municipalities in the US have enacted biometric privacy laws to regulate the collection, use, and storage of biometric identifiers. These laws vary significantly in scope, definitions, consent requirements, enforcement mechanisms, and penalties:

• Illinois Biometric Information Privacy Act (BIPA): BIPA is the most litigated statute in this domain. It defines biometric identifiers to include retina or iris scans, fingerprints, voiceprints, and scans of hand or face geometry but excludes photographs and videos alone. Employers must obtain informed, written consent before collecting biometric data. Violations can lead to private lawsuits with statutory damages of $1,000 per violation or $5,000 for reckless violations, plus legal fees. BIPA’s broad reach covers non-Illinois residents working within the state [1].

  
  
  

• Texas Capture or Use of Biometric Identifier (CUBI): This law imposes restrictions on capturing or using biometric identifiers but differs in specific consent and enforcement provisions [2].

• Washington Privacy Act: Governs biometric data protection with unique state-specific definitions and procedural safeguards [3].

• New York City Biometric Privacy Law: Regulates biometric data collection in NYC with distinct requirements and enforcement by city authorities [4].

Employers using AI tools that analyze facial features, voice patterns, or physiological biometrics must be aware of these divergent legal frameworks to avoid liability.

AI Applications Impacting Workplace Biometric Data Use

AI products in workplaces encompass a range of functions where biometric data collection is integral:

• Monitoring employee safety by detecting proper use of protective equipment or hazardous conditions.
• Assessing employee fatigue or substance use through analysis of heart rate, speech patterns, or facial biomarkers.
• Real-time scanning of body movements and facial features via cameras or wearable sensors.
• Video-based monitoring systems employing facial geometry to detect driver distraction or inattentiveness.

While these technologies serve legitimate safety and productivity goals, their use triggers biometric privacy regulations requiring transparent consent and data handling practices.

Case Study: Ongoing Litigation under Illinois BIPA

An illustrative example is a pending class-action lawsuit in the Northern District of Illinois against a motor transportation company. The employer installed an AI-enabled video monitoring system inside trucks to detect risky driver behaviours. The plaintiff alleges that the system scanned drivers’ faces to identify them via facial geometry, storing biometric data without consent, violating BIPA’s requirements.

The court denied the employer’s motion to dismiss, ruling that facial geometry qualifies as a biometric identifier under BIPA, and highlighted that even non-Illinois residents working in Illinois may be covered by the law. This case signals heightened scrutiny and potential costly litigation for employers using biometric AI without strict compliance [1].

Implications for Employers:

Strategic Recommendations for Employers

Employers adopting AI with biometric elements should:

• Conduct thorough legal reviews of biometric privacy laws applicable to all jurisdictions where employees work.
• Implement robust consent protocols, ensuring employees are informed and explicitly agree before data collection.
• Develop clear policies on data retention, security, and destruction aligned with legal standards.
• Monitor ongoing litigation trends, particularly in Illinois, and adjust compliance frameworks accordingly.
• Engage legal counsel proactively to mitigate risks associated with biometric data usage in AI systems.

Takeaway

The rise of AI in workplace monitoring introduces significant compliance challenges related to biometric privacy laws. Employers must carefully navigate jurisdictional differences, ensure rigorous consent and data protection measures, and remain vigilant to legal developments such as recent Illinois litigation. Proactive compliance strategies are essential to leverage AI benefits in employee safety and productivity without incurring costly legal liabilities.

Footnotes

[EX1] Illinois Biometric Information Privacy Act (BIPA), 740 ILCS 14/15(b) – https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3004&ChapterID=57 – Authoritative statute defining biometric data and consent obligations in Illinois.

[EX2] Texas Capture Or Use Of Biometric Identifier (CUBI), Tex. Bus. & Com. Code Ann. § 503.001 et seq – https://statutes.capitol.texas.gov/Docs/BC/htm/BC.503.htm – Regulatory framework governing biometric data in Texas.

[EX3] Washington Privacy Act, Wash. Rev. Code §§ 19.375.010 to 19.375.900 – https://app.leg.wa.gov/RCW/default.aspx?cite=19.375 – State laws regarding biometric information privacy.

[EX4] New York City Administrative Code §§ 22-1201 to 22-1205 – https://www1.nyc.gov/site/doitt/business/biometric-privacy.page – NYC biometric data privacy regulations.

[1] JD Supra, “Employers Must Comply with Biometric Privacy Laws When Using AI at Work,” https://www.jdsupra.com/legalnews/don-t-forget-about-biometric-9771901/ – Original article analyzed in this report.