July 9, 2021
Walmart has been accused of violating a worker’s privacy by utilizing voice recognition software to track the employee’s work without first obtaining his consent. The former warehouse worker, Andrew Barton, is seeking to certify a class of plaintiffs stemming from Walmart’s alleged violation of Illinois’ Biometric Information Privacy Act (“BIPA”).
Walmart uses voice recognition software at its fulfillment centers to capture and use employees’ voiceprints as they pick and package items customers have purchased. Using the software in this manner is not in and of itself illegal, rather it is Walmart’s alleged failure to get the employee’s informed consent prior to doing so.
Walmart claims its voice tracking practice allows it to better track inventory, limit waste and theft. However, Barton and worker privacy advocates argue that while there may be benefits of using biometric technology in this manner, serious privacy risks are created in the event of a data breach, which would open employees up to the possibility of identity theft. Regardless of Walmart’s position, advocates argue that the Illinois law is specifically designed for this reason, to give employees control over their biometric privacy, and as a result, informed consent must be obtained by Walmart.
Barton is seeking to represent a class of all similarly situated employees at Illinois Walmarts who had their voiceprints recorded without informed consent. The claim is seeking damages for each member of the class in the amount of $1,000 for each negligent BIPA violation and an additional $5,000 for each willful violation of BIPA committed by Walmart.
In a related BIPA case, the Seventh Circuit Court of Appeals (the federal appellate court that covers Illinois) has agreed to hear arguments regarding the appropriate way to calculate penalties for BIPA violations and whether an employee’s privacy rights are violated each time an employer collects biometric data from an employee (e.g. each time an employee scans his thumb print when signing in and out at work) or if an employee’s rights are only violated the first time an employer collects this information without an employee’s consent. The Seventh Circuit’s decision in this matter will have significant impact on employers who have intentionally or unintentionally violated BIPA – millions of dollars in penalties weigh in the balance. Ultimately, if Barton is able to win his case on the merits, the outcome of the Seventh Circuit case will likely determine the amount of penalties which can be recovered from Walmart. Stay tuned. Much more to come on this.
Brody and Associates regularly advises management on complying with the latest state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
