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Time recording by fingerprint: then it is permitted

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Fingerprint time recording is becoming increasingly popular with companies. However, biometric recording systems have a catch: they are not always permitted and there are guidelines that must be adhered to.

Fingerprint time recording and the GDPR

Biometric time recording is an ambivalent topic, and not just because of data protection. Since the introduction of the General Data Protection Regulation (GDPR) in the EU, special attention has been paid to compliance with data protection. The GDPR classifies biometric features as a special category of personal data.

The GDPR places these special categories of personal data under special protection. This means that this data is only collected in exceptional cases and is generally not processed.

There are exceptions to the general ban on processing biometric data, which the GDPR grants. The collection and processing of biometric data is then permitted:

  1. Data subjects have given clear, voluntary and informed consent to the processing of their biometric data.
  2. The collection of the data is necessary due to labor or social law considerations (this applies, for example, to health data in the case of employee sickness notifications).
  3. The processing of the data is necessary to protect the vital interests of the data subject or others.
  4. Data was made public by the data subjects themselves.
  5. Data must be collected for the judicial exercise, defense or assertion of legal claims.
  6. The processing serves a legal or public interest (for example in criminal prosecution).

The first point is of particular interest to employers.

Recording time with consent

In 2022, the Berlin-Brandenburg Regional Labor Court made a decision regarding the recording of working hours by fingerprint. In addition to Art. 9 para. 2 lit. b GDPR, the decision also takes into account Section 26 (3) BDSG (Federal Data Protection Act).

The case in question was not about the complete fingerprint, but about the so-called minutiae. These are the individual finger lines and grooves on the fingertip.

An employee refused to use his employer’s biometric time recording system. As a result, he was given a warning by the employer in question. The court ruled that the warning was unlawful and must be removed from the employee’s personnel file.

The ruling states that the processing of biometric data was impermissible and therefore the refusal did not constitute a basis for a warning. The reason: fingerprint time recording is only permissible – according to the ruling – if it is necessary for the performance of the employment relationship. The employer, on the other hand, wanted to install an effective time recording system in order to better monitor its employees. This contradicts the statutory regulations, unless there is a justification that makes greater control necessary. For example, if several cases of working time fraud could be proven.

The court’s decision was based on the view that employees generally behave in accordance with their contracts when clocking in and out, which means that biometric time recording is not justified purely as a better control option. The suspicion that, for example, colleagues are clocking in for others at the time clock is not sufficient to justify increased monitoring. Concrete evidence of significant misuse of the existing system is required to justify the installation of a biometric time recording system.

Employers are only permitted to process personal data if it serves to uncover criminal offenses such as working time fraud. Accordingly, the employee was allowed to refuse to use the time recording system.

What employers should bear in mind when using fingerprint time recording

As stated in the court ruling from 2022, employers must obtain the consent of their employees in order to set up a biometric time recording system and thus collect personal data. Consent is also deemed to have been given if it is included in the company agreement.

If no consent is given, employees may neither be warned nor dismissed for refusing to use a biometric time recording system.

If there is a works council in the company, it has a say in the decision to introduce a new time recording system.

However, there are areas in which biometric time recording may be considered necessary and therefore permissible. These are, for example, sensitive research projects in companies.

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