Israel: Court Prohibits Biometric Fingerprinting in the Workplace

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By Jenny David

Israeli employers may no longer require employees to provide their fingerprints for use with a biometric time clock, Israel's National Labor Court ruled March 15, calling the practice an invasion of worker privacy.

Requiring workers to provide their fingerprints, “while threatening (and realizing the threat) to revoke their pay if they do not entails an unlawful infringement of their right to privacy and physical autonomy and constitutes a violation of the employer's duty to act in good faith and with great integrity,” wrote a judicial panel headed by Judge Lea Glicksman.

The ruling was issued against the Arab municipality of Qalansuwa in central Israel, which had required its educational workers to provide fingerprints as a condition of their employment. Opponents of growing biometric use in Israel said this set a precedent for all Israeli employers.

Adding to the controversy, the Israeli parliament enacted legislation Feb. 27 that would require Israeli citizens to participate in a biometrics database as a means of supporting a more secure personal identification card system, a mandate opposed as insecure by some corporate interests. Interior Minister Arye Dery has until May 1 to submit detailed enforcement regulations to parliament. If parliament approves the regulations, mandatory participation in the database will take effect July 3. The law’s final draft made the inclusion of fingerprints in the database optional, although individuals who opt to include only facial recognition will be entitled to a smart identification card valid for only five years rather than the 10 years for those who also submit fingerprints.

A petition against the database is pending in Israel's Supreme Court.

Fingerprint Is Personal Data

“A fingerprint is private and personal data, and its very provision harms the privacy and autonomy of its provider,” the court held, noting that “additional and separate harm” is caused by the “real risk that the fingerprint could be abused or used other than for the purpose it was given.”

In addition, the court said, the use of a biometric clock “constitutes a significant change in employment conditions and as such requires consultation with workers' representatives,” so the municipality was not entitled to impose the condition on its workers unilaterally or sanction those who refused.

Noting that such privacy violations could be considered criminal, the panel ordered the Qalansuwa municipality to stop using the biometric clock, to stop collecting fingerprints and to destroy accumulated fingerprints immediately.

According to the court, this ruling applies to other employers using biometric systems.

The court did not rule out the use of biometric systems in the workplace “totally or forever,” however. Rather, it said, “the existence of certain conditions”—such as reasonableness, proportionality, transparency and the nature of informed consent—“must be closely examined in order to enable their use.” The judges also suggested that a law was needed to regulate biometric use in the workplace “in light of limits detailed in the Basic Law on Human Dignity.”

The court left undecided the question of whether the right to privacy could be restricted in a collective labor agreement.

Precedent for State Plan?

While calling the decision “historically significant,” Jonathan Klinger, legal advisor of the Digital Rights Movement, said it is more important for the “headwind” it provides against the state's plan for a mandatory biometric database.

“The court put an end to years of legal dispute when it determined that a worker is not voluntarily consenting to provide his fingerprint when he arrives at work and that he cannot be forced to do so,” Klinger said in an email statement to Bloomberg BNA March 15.

The court also noted “how humiliating it is to take someone's fingerprints, as if they are a suspect, and explains that an especially strong and legitimate interest is required to allow that violation of privacy,” Klinger added.

Attorney Avner Pinchuk, who represented the Association of Civil Rights in Israel as a friend of the court, also welcomed the decision.

“I hope employers will get the message that they must stop abusing the gap in power between them and their workers and respect their privacy,” Pinchuk said, adding that “thousands of workers who were until now forced to provide a fingerprint suffered great harm to their privacy and dignity.”

The municipality's attorney, Waeil Rabi, said “we are studying the ruling and considering what steps to take.”

To contact the reporter on this story: Jenny David in Jerusalem at correspondents@bna.com

To contact the editor responsible for this story: Rick Vollmar at rvollmar@bna.com

For More Information

For more information on Israeli HR law and regulation, see the Israel primer.

The ruling in case 7541-04-14, The Histadrut General Labor Federation et al vs. the Qalansuwa Municipality, is available

here.

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