Face Recognition Technology Might Get Employers in Trouble

By Katti Gray February 27, 2012

In today’s world, photos can reveal much more than just a face.

By linking anonymous dating site profiles randomly to images posted on Facebook, researchers at Carnegie Mellon University’s Heinz College say it took just three minutes for them to identify a person and find their Social Security number, credit scores and other private data.

While it is not widely used, experts say this technology is available to anyone—including employers. The first time one of employment lawyer Todd Frederikson’s clients asked him about using face recognition software to find and keep the best employees, his reply was unequivocal: Steer clear of that technology.

While it can match the image of a face to a correct home address, Social Security number, criminal rap sheet and social club patronage, it can make employers privy to information that invites trouble.

Beware Protected Classes

“Twenty years ago, when clients were starting to get resumes with pictures embedded, our advice to clients was to get rid of the pictures,” said Frederikson, managing partner of Fisher & Phillips LLP in Denver. “We give the same advice today when it comes to facial recognition software. If that [applicant or employee] is in a protected class … and you’re keeping images of folks in personnel files, it’s just a matter of time before you’ll hear ‘You didn’t hire me or you fired me because I’m black or Hispanic.’ ”

“Or Jewish or Catholic,” or a member of some other group that can cry foul legitimately, added lawyer Tina Maiolo, who is with Carr Maloney P.C. in Washington, D.C.

Like Frederikson, she is among workplace attorneys who are monitoring their clients as they keep a curious eye on this tool.

Apart from a self-selected and narrow pool of companies, including those involved in defense, law enforcement, certain sciences and high finance—where information is especially proprietary and employees are screened for security clearances—few employers can argue their need to use facial recognition software, lawyers said.

Even the federal government, which regulates hiring practices, is feeling its way across this new terrain. On Dec. 8, 2011, the Federal Trade Commission (FTC) hosted a Face Facts Workshop as part of its fact finding on the privacy and security implications of facial recognition technology. The FTC followed that workshop by soliciting public comment on the topic.

“The bottom line is that there really is not a good law right now that you can point to that says, ‘Here’s what our rights are’ ” regarding the use of facial recognition technology, attorney Rich Glass, chief compliance officer at Infinisource, a cloud-based HR management consultancy in Coldwater, Mich., told SHRM Online in February 2012. “We’ll just have to see how the next year or two plays out. This technology will become so readily available, so easy to use, that it will basically scream out for some level of regulation. There really need to be some ground rules.”

An August 2011 report by researchers at Heinz College noted that facial recognition software has existed since 1973. However, “security hasn’t been one of the main areas of application of face recognition until now,” said Alessandro Acquisti. He co-authored the report Faces of Facebook: Privacy in the Age of Augmented Reality.

“The proliferation of large, publicly available repositories of facial images—such as those one can find on social networking sites—is likely to allow new usages for facial recognition. Some of those usages could be highly beneficial—say, identifying missing or abducted individuals. Other usages, however, in particular those related to unwanted surveillance, raise concerns.”

Policies and Permissions

In an age when it’s possible to conjure a fictionalized personal and employment history, some employers are tempted to find out how this technology can aid them, said attorney E. Jason Tremblay, a partner with Arnstein & Lehr in Chicago. One legitimate use of face recognition software, Tremblay added, might be to confirm that a worker on disability leave is not taking an extended vacation from work.

“The only time I would recommend using [face recognition technology] is in cases of proving an employee infraction, where there’s reasonable cause that an employee is [unlawfully] using company property or company time and you can justify their termination and means of termination,” Tremblay said. He noted that legal termination provisions vary from state to state, adding that verification of immigration status is another potentially legitimate use.

Still, he offers cautions for companies bent on using the technology for broader purposes:

  • Give employees a written policy on the company’s use of face recognition software.
  • Subject employees and applicants to the policy so that no group is singled out.
  • When hiring, use the software after the final pool of applicants has been selected, not to screen from the full, preliminary pool.
  • Get the interviewee or applicant’s written consent to be profiled through face recognition technology.

More advice: Be prepared for whatever comes next.

“My first impression of this is that employers are going to get into trouble with it,’ said Maiolo. “There are reasons why you don’t ask certain questions in an interview. It’s not enough that you didn’t intend to do something wrong; … [With this technology], you’re stepping voluntarily into things you don’t want to know,” she said. For example, “if you search for my pictures, you’ll see my daughter’s christening and you’ll get wind that I’m Catholic,” Maiolo said, “and suppose you don’t like Catholics?”

Frederikson agreed.

“Beyond the legal implications, what’s the impact on employer and applicant morale?” Frederikson asked. “People will say, ‘Jeez, is this the kind of place where I want to work?’ ”

Good question.

“The employers who are using facial recognition software seemed to have gotten beyond that question and rolled the dice: ‘As long as we tell people up front, do the notice part and get them to sign on, and that’s the consent.’ They’re thinking, perhaps, that they can’t be sued. But some savvy complainant’s lawyer is bound to argue that’s not really consent—especially in today’s market where people are literally dying [to get] a job.”

New York-based freelancer Katti Gray has written for The Washington Post, ABCNews.com, Essence, Ebony, Newsday and other news organizations.



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