Employment Law Alert - Illinois Supreme Court Confirms that Employee BIPA Claims May Stand Outside of the Context of the Illinois Workers' Compensation Act

02.21.22

On February 3, 2022, the Illinois Supreme Court issued a decision in McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511, finding that statutory violations of the Illinois Biometric Information Privacy Act (“BIPA”) are not preempted by the Illinois Workers’ Compensation Act (the “IWCA”). Until now, IWCA preemption was one of the strongest and most common defenses relied upon by employers in employee-led BIPA litigation. Employers will now need to rethink their artillery of defenses in BIPA litigation.

Since its enactment in 2008, the BIPA has regulated the use, collection, storage, and disposal of certain individual biometric information, such as fingerprints, voice recordings and eye scans by private businesses. Before an employer or other private entity can collect, store, use or disclose an individual’s biometric information, it must first obtain informed, written consent from that individual, among other things. The BIPA allows private individuals to pursue lawsuits for violation of the statute and recover statutory damages of up to $1,000 for each negligent violation, up to $5,000 for each intentional or reckless violation and attorneys’ fees. As one can imagine, an employer with thousands of employees that violates the BIPA could be subject to significant damages and fees.

In McDonald, the plaintiff, a former employee of a nursing home, Symphony Bronzeville Park, LLC (“Bronzeville”), alleged that Bronzeville violated the BIPA by utilizing a biometric information system which required her to scan her fingerprints, for the alleged purposes of authenticating employees and tracking employees’ time, without ever obtaining her informed consent for the use or storage of her biometric information. The plaintiff further alleged that she was never informed of the purpose or length of time for which her biometric information would be stored.

Bronzeville sought to dismiss the plaintiff’s BIPA claim, arguing that the IWCA provided the exclusive remedy for accidental injuries transpiring in the workplace and that an employee has no common-law or statutory right to recover civil damages from an employer for injuries incurred in the course of employment. The Circuit Court of Cook County denied Bronzeville’s motion to dismiss. The Appellate Court for the First District of Illinois affirmed, ruling that an injury due to the loss of the ability to maintain privacy rights is distinct from the type of psychological and physical injuries recoverable under the IWCA.

Although the Illinois Supreme Court recognized that the appellate court’s holding could open up the floodgates to employee class actions filed under the BIPA, it affirmed the appellate court’s decision, finding that BIPA claims are not preempted by the IWCA.

The Court’s ruling in McDonald will inevitably lead to a stark rise in the number of employee-led BIPA lawsuits in the years to come. As a result, employers who use or intend to use, collect or otherwise access their employees’ biometric information should ensure and confirm that they have robust compliance policies and procedures in place in order to comply with the BIPA.

If you have any questions about this Alert, or if you would like assistance with updating your policies and procedures to comply with the BIPA or with implementing such policies, please contact the author listed below or the Aronberg Goldgehn attorney with whom you work.

Maryam H. Arfeen
marfeen@agdglaw.com
312.755.3185