Are fingerprints protected by the 5th change

Recording of working time by means of fingerprints is not permitted

Time recording systems that use fingerprints to identify employees are generally not permitted. Something different only applies if the employer can prove that the so-called fingerprint system is absolutely necessary or that a corresponding agreement is in place.

The labor court (ArbG) Berlin decided on October 16, 2019.

Employer uses fingerprints to record time

In the case decided it was about an employer who used a so-called fingerprint system to record working hours. Here the employees have to have their fingerprints scanned, which are then processed and saved by a computer program. Employees only have to show their fingerprint when starting and finishing work and are stamped in and out. The employer emphasized that the fingerprint itself is not stored and cannot be generated from the stored finger lines.

One employee refused to use the fingerprint system and therefore received several warnings. Against this he complained.

Fingerprints for time recording are only permitted in exceptional cases

The court ruled in favor of the employee. This could not be obliged to use the time recording system. The employee's fingerprints are biometric data that are subject to special protection under data protection law. Their processing by the employer is therefore only permitted in very limited exceptional cases.

In the present case, the employee had neither consented nor was the use of the fingerprint system agreed under collective law. In addition, there is no special exceptional case within the meaning of Section 26 (3) of the Federal Data Protection Act (BDSG).

The court was also guided by the principle: "The more intensely the employee's personal rights are interfered with, the more important the purpose pursued by the employer must be." In the present case, it was not clear why another time recording system could not be used. In particular, there was no abuse of another time recording system in advance.

Conclusion

The use of fingerprints for time recording is only permitted in exceptional cases. This can be the case, for example, if alternative time recording systems have been misused beforehand. It is also possible to use it if the employee has given their consent or, for example, a works agreement that allows the employer to use the system.

Labor Court Berlin, judgment v. 16.10.2019, Az. 29 Ca 5451/19.

Important in this context: the ECJ obliges member states to record working hours

As early as May last year, the European Court of Justice (ECJ) ruled that the European member states must oblige their employers to set up working time recording systems. This is intended to protect employees and, for example, ensure that minimum rest periods and maximum working hours are observed. With the collected data, the employee can be given statistics about his own activity, with which he can enforce his legal rights in case of doubt.

Since this regulation is more comprehensive than previously provided by German law, the decision of the ECJ still has to be implemented in national law. That is the job of politics. It remains to be seen which systems it will provide for this.