7th Circuit rules fingerprinting BIPA claims may be preempted in some circumstances by Labor Management Relations Act



September 24, 2021

Cybersecurity & Privacy Alert

Author(s): Laura B. Bacon, Henry J. Caldwell, John Ruskusky, Richard H. Tilghman IV, Brian V. Alcala

The court affirmed that employee claims for violations of the Illinois Biometric Information Privacy Act by use of fingerprinting logins may be preempted under the Labor Management Relations Act for employees subject to union CBAs.

What’s the Impact?

  • This ruling confirms that BIPA claims brought by employees subject to collective bargaining agreements are unlikely to succeed in court
  • Employers using biometric information in the workplace should consult with counsel to ensure compliance with BIPA and other regulations governing biometric data

On Monday, a unanimous three-judge panel of the 7th Circuit affirmed the district court’s prior ruling that employee claims for violations of the Illinois Biometric Information Privacy Act (“BIPA”) may be preempted under Section 301 of the Labor Management Relations Act (“LMRA”) for those employees subject to a union collective bargaining agreement.

In Fernandez, et al. v. Kerry, Inc., plaintiffs—members of Local 781 of the Miscellaneous Warehousemen, Airline, Automotive Parts, Service, Tire and Rental, Chemical and Petroleum, Ice, Paper, and Related Clerical and Production Employees Union—alleged, among other things, that defendant violated BIPA by requiring workers to use fingerprints to clock in and out without providing notice and obtaining consent. At the district court level, plaintiffs’ claims were dismissed for lack of subject matter jurisdiction because resolution required the interpretation of collective-bargaining agreements between defendant and plaintiffs’ union, which triggered preemption under Section 301 of the LMRA.

The 7th Circuit’s decision to affirm the lower court’s dismissal follows prior decisions involving BIPA claims brought by union workers against their employers. Of greatest significance to the court was its prior June 2019 decision in Miller v. Southwest Airlines where it held that disputes about the interpretation or application of a collective bargaining agreement related to the use of fingerprint-scanning time clocks were preempted by the Railway Labor Act (“RLA”). Plaintiffs attempted to distinguish Miller by arguing that the RLA is “more preemptive” than the LMRA, but the court disagreed and noted that its own decisions and those of the US Supreme Court have equated the two. The court also rejected as immaterial plaintiffs’ argument that the means of clocking in and out was a “permissive subject” of collective-bargaining under the LMRA as opposed to a “mandatory subject” under the RLA.

Finally, as it did in Miller, the court recognized the significance of the management-rights clauses in the parties’ collective-bargaining agreements because “whether [the] unions did consent to the collection and use of biometric data, or perhaps grant authority through a managements-rights clause, is a question for [decision under the agreement].” Although the court held that such a decision was reserved for an arbitrator per the LMRA, it denied plaintiffs’ request for arbitration as, again, this is a request that must be addressed between the union and the employer in the first instance.

With Fernandez, the 7th Circuit makes clear that BIPA claims brought by employees subject to collective bargaining agreements are unlikely to have a path forward in court. Quoting Miller, the Seventh Circuit reminded: “States cannot bypass the mechanisms of [federal law] and authorize direct negotiation or litigation between workers and management.”

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