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09.23.20

Illinois Workers’ Compensation Act does not preempt biometric privacy claims brought by employees

BY , , Henry J. Caldwell

The Illinois Biometric Information Privacy Act (BIPA) has resulted in hundreds of class action cases against entities that employ biometric technology. The majority of these cases have been filed as putative class actions by employees who, for purposes of recording their time at work, scanned their fingers into a biometric time clock. Many Illinois employers have defended these claims by arguing that claims for “injuries” arising from the use of biometric time clocks constitute a harm that can only be compensated through the Illinois Workers’ Compensation Act (IWCA), which provides an exclusive remedy for employees injured in the workplace. Trial courts have roundly rejected that argument, and the Illinois Appellate Court has now sided with those decisions as well.

In McDonald v. Symphony Bronzeville Park LLC, the Illinois Appellate Court, First District, considered a certified question on interlocutory appeal: “Do the exclusivity provisions of the [IWCA] bar a claim for statutory damages under BIPA where an employer is alleged to have violated an employee’s statutory privacy rights under BIPA?” The court’s answer: No.

The facts of the McDonald case are familiar to the hundreds of employers who have been sued for using biometric time clocks in Illinois over the past several years. The plaintiff alleged that her employer violated BIPA by requiring her to use her fingerprint to clock in and out of work without providing written notice, obtaining written consent, and maintaining a publicly available retention and destruction schedule for any biometric data collected. She sought statutory damages under BIPA of $1,000 for each “negligent” violation and $5,000 for each “intentional” or “reckless” violation. The defendants moved to dismiss, arguing that BIPA claims arising from privacy injuries in the workplace were solely compensable via the IWCA. The trial court rejected that argument but certified the issue for interlocutory appeal.

The Illinois Appellate Court sided with the plaintiff and the trial court, holding that the IWCA does not preempt BIPA claims that arise in the workplace.[1] The court reasoned: “we fail to see how a claim by an employee against an employer for liquidated damages under [BIPA]—available without any further compensable actual damages being alleged or sustained and designed in part to have a preventative and deterrent effect—represents the type of injury that categorically fits within the purview of the [IWCA], which is a remedial statute designed to provide financial protection to workers that have sustained an actual injury.”

The court’s decision is not a surprise to those who have been tracking BIPA decisions in Illinois—despite many attempts, no Illinois employer had been successful in dismissing BIPA claims under the exclusivity provisions of the IWCA. Nonetheless, the ruling is a disappointment for the defense bar, as a defense ruling would have defeated the vast majority of BIPA class actions that have been filed to date. While the defendant in McDonald will have the opportunity to seek a review of the certified question in the Illinois Supreme Court, the likelihood of Illinois’s highest court reviewing the decision seems low.


  1. The court’s holding was limited to plaintiffs who seek “statutory liquidated damages.” Under BIPA, plaintiffs who sustain “actual damages” in excess of the statutory damages amount may recover actual damages, and the court did not rule on whether claims that seek actual damages are preempted by the IWCA. [Back to reference]
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Richard H. Tilghman IV

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John Ruskusky

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Henry J. Caldwell

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