On Tuesday, the Illinois Appellate Court, First District, followed a series of federal opinions in holding that claims under the Illinois Biometric Information Privacy Act (BIPA) are preempted by the Labor Management Relations Act (LMRA). For employers with union members who have been caught in BIPA’s crosshairs, the decision provides grounds for eliminating or limiting potential BIPA liability.
In Walton v. Roosevelt University, the plaintiff, a member of the SEIU Local 1, brought suit against his employer, Roosevelt University, asserting that the University had required him to scan his hand into a biometric timekeeping device while clocking in and out of work without obtaining informed written consent. He further alleged that the University had disclosed his biometric data to a third-party payroll service without consent. The plaintiff sought to represent a class of all similarly situated employees. The University moved to dismiss, arguing that the plaintiff was covered by a collective bargaining agreement with a “management rights” clause, the interpretation of which is exclusively governed by the LMRA, preempting BIPA. The trial court denied the defendant’s motion to dismiss, but certified for appeal the question of whether the LMRA preempted the plaintiff’s claims.
The Illinois Appellate Court sided with the University, holding that the plaintiff’s claims were preempted by the LMRA. In so holding, the court deferred to several prior decisions interpreting the scope of preemption under the LMRA, including the Seventh Circuit’s decision in Fernandez v. Kerry, Inc., 14 F.4th 644 (7th Cir. 2021) in which the court similarly held that BIPA claims were preempted by the LMRA due to the employer’s invoking a broad management rights clause. Referencing BIPA’s provision that a “legally authorized representative” may consent to the collection of biometric information, the Illinois Appellate Court reasoned that it was “clearly within a union’s purview to negotiate with the employer about its members’ biometric information.” Thus, the court concluded that whether the union consented to the biometric collection was not for the court to decide, but was “reserved for arbitration or other bargained-for grievance procedures under the” LMRA and that the plaintiff could not bypass the union and proceed directly in asserting claims against his employer under BIPA. Whether a union member is entitled to relief for alleged privacy violations under the LMRA is an open question dependent on the language of the collective bargaining agreement at issue, but at the very least, the application of the LMRA relieves employers of the statutory damages scheme imposed by BIPA.
The Walton decision should be welcome relief to employers of union members who have been sued under BIPA, of which there are many. For employers with a mix of union and non-union members, the decision should help limit the scope of BIPA exposure because claims by union members likely are preempted by the LMRA, depending on the language of the collective bargaining agreement at issue and its applicable dispute resolution mechanisms.