February 22, 2022
Earlier this month the Illinois Supreme Court held in McDonald v. Symphony Bronzeville Park LLC that the Illinois Workers’ Compensation Act (“IWCA”) does not preclude claims for statutory damages under the Illinois Biometric Information Privacy Act (“BIPA”). The ruling is a huge win for workers. It could be the impetus for class actions in Illinois against employers who have allegedly violated employees’ right under BIPA.
BIPA Background
Unlike many biometrics statutes, Illinois’ BIPA provides individuals a private right of action to seek damages, attorney fees and costs. As a result, private employers need to take care to only “collect, capture, purchase, receive through trade, or otherwise obtain a person’s or a customer’s biometric identifier or biometric information” only after first informing individuals about its biometric collection practices and subsequently receiving their written consent.
As we have written previously, BIPA imposes restrictions on how private employers, “collect, retain, use, disclose, and destroy ‘biometric identifiers’ and ‘biometric information’. For the purposes of the statute:
- ‘Biometric Identifiers’ include “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry”; and
- ‘Biometric Information’ includes “any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual.”
McDonald Decision
The plaintiff, McDonald, alleges her former employer required her to use a biometric-based fingerprint timekeeping system without her written consent. McDonald further alleges her employer failed to adequately inform her of the purpose for collecting her fingerprints or the duration of time her employer intended to retain the information.
The defendant, Symphony Bronzeville Park LLC, filed a motion to dismiss based on its claim that the IWCA was the only remedy for McDonald, and she was thus barred from making a BIPA claim.
The Illinois Supreme Court determined the exclusivity provisions of the IWCA did not bar a claim for damages under BIPA, and the IWCA’s exclusivity provisions should only be applied to compensable injuries. The Illinois Supreme Court further found the legislative history of BIPA supported this finding. The ruling will (i) eliminate a key defense for employers looking to argue a BIPA claim is barred by IWCA, and (ii) lift existing stays in a number of pending BIPA cases.
Closing Thoughts
All of our readers should note, while this case only addresses issues regarding Illinois employers and the Illinois BIPA law, biometric privacy in the workplace is quickly becoming a hot-button issue around the country. As a result, all employers should be sure to review and conform their policies to existing state biometric laws. And for those employers whose states have yet to enact a biometric privacy law, it makes good sense to at least inform your employees of any biometric data you are collecting and storing and to receive their consent to do so. One never knows when an employee will allege some general right to privacy which is violated when biometric data is used.
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.
