It goes without saying that employers want to be certain their employees are actually clocking in and out of work when they claim they are.

However, with only ID numbers or paper time cards, employers can never know for sure which employee is actually punching in or out of work. This phenomenon, known as "buddy punching," where one employee clocks into or out of work for another, is nothing new.

However, thanks to the science of biometrics, there is something new that employers can do to eliminate "buddy punching," and know exactly which employee is using the time clock and when.

What it is

Biometrics is the science of recognizing humans based on measured physical or behavioral traits. Physical traits that are utilized in biometric science include facial images, fingerprints, hand geometry, iris or retinal scans, handwriting, voice recognition and DNA, to name a few.

Biometric technologies compare saved images of one or more of those physical traits to live images for authentication purposes. The authentication process starts by taking images of certain physical traits from a group of persons, such as fingerprints. These images are then stored in digital form in a biometric authentication device. The device is then activated by a person pressing his or her fingertip on a sensor on the device. The fingertip is then scanned for an image, and the image converted into digital form to identify certain match points. Software in the device then compares the match points to the database of fingertip images stored within the device to identify a match.

Boasting almost 100 percent accuracy, these machines are used most frequently to grant certain people access to restricted rooms or buildings by identifying the person as someone who is authorized to gain access to such restricted areas. Biometric technologies are also used in the consumer-banking industry and at Walt Disney World theme parks.

So how can biometrics help your company? Understandably, employers are interested in doing whatever they can in the interest of security and to keep their employees from "cheating" the time-clock system.

Indeed, several new biometric products on the market advertise themselves as being able to eliminate time cards, early punch-ins and unauthorized overtime, and to accurately report employee time and attendance using biometric technology. This technology not only keeps costs down, but frees up valuable time once spent monitoring the time clock.

With a biometric time clock, "buddy punching" is virtually impossible, since only an employee's actual fingerprint - and not a buddy's fingerprint - can identify the employee to activate the time clock.

Privacy protections, exceptions

But before companies rush out and purchase a biometric time clock, keep in mind that employees may have privacy rights that may be infringed by biometric technologies. Some states, like New York, have made sure to preserve some of those rights through laws - in the case of New York, by prohibiting required fingerprinting of employees.

New York State Labor Law §201-a expressly prohibits the fingerprinting of job applicants and/or employees except in very limited circumstances.

"Except as otherwise provided by law," the statute provides, "no person, as a condition of securing employment or of continuing employment shall be required to be fingerprinted. This provision shall not apply to: (1) employees of the state or any municipal subdivisions or departments thereof, or to the employees of legally incorporated hospitals, supported in whole or in part by public funds or private endowment; (2) the employees of medical colleges affiliated with such hospitals; or (3) employees of private proprietary hospitals" (NY CLS Labor §201-a).

There are, however, several exceptions to the rule as stated in §201-a and other New York state laws that allow for some employers to fingerprint applicants and current employees.

For example, New York Stock Exchange Rule 28 (as amended, effective March 8, 2006) states that "all (Exchange) floor employees of members and member organizations and all employees of members and member organizations who have submitted registration applications for admission to the (Exchange) floor are required to be fingerprinted and to submit, or cause to be submitted, such fingerprints to the Exchange for identification and appropriate processing."

Likewise, New York Social Services Law §390-b requires the fingerprinting of all operators, employees and volunteers of child day-care centers and school-age child-care providers. Other applicants/employees who may (or in some cases must) be fingerprinted include those applying for jobs and/or working as: (1) blasters; (2) farm labor contractors; (3) security/fire alarm installers; (4) employment agency managers; (5) armored car guards; (6) bus drivers; (7) private investigators; and (8) security guards. (See the New York State Department of Labor Web site, www.labor.state.ny.us).

Options the law leaves open

Because the required fingerprinting of employees is generally prohibited in New York, only certain employers can legally use fingerprint-based biometric time clocks to monitor their employees. So what if your company does not employ the type of employees who may be fingerprinted - are you stuck with paper punch cards?

Not necessarily. The statute speaks only to the fingerprinting of employees, not to other forms of characteristic identification, such as retinal scans or voice recognition. Further, the statute seems to make it clear that it is the "required" fingerprinting of employees that is at issue, leaving open for question whether employers who permit employees to volunteer to provide fingerprints for their own convenience (not having to carry some other sort of access card or time card, etc.) are still in violation of the statute.

The absence of complete regulation of this area may leave employers not specifically excepted by the statute the option of using a different form of biometric identification to track their employees - unless and until the state Legislature decides to expand the scope or reach of employee privacy laws.

Thus, while it may be illegal for some employers to identify their employees by their fingerprints and, therefore, illegal to use fingerprint-based biometric technology, there are several other ways biometric technologies may help to identify your company's employees and to eliminate "buddy punching" for good.

Ginger Schröder is a partner in Schröder Joseph & Associates LLP, and Megan Landreth is an associate at the firm. They can be reached at gschroder@sjalegal.com