Labor & Employment Law Update

The first—and a significant—amendment to the Illinois Biometric Privacy Act (BIPA) has just passed both chambers of the Illinois legislature and is headed to Governor Pritzker for approval. SB2979 amends BIPA to address the troubling trend of litigants seeking per-scan damages under BIPA, where a handful of enterprising attorneys have, and continue to file, single-plaintiff cases seeking damages on a per-scan basis that exceed six-figures for a single individual.

In a rare win for employers, on March 23, 2023 the Illinois Supreme Court issued its decision in Walton v. Roosevelt University, affirming dismissal of claims brought under the Biometric Information Privacy Act (BIPA) by a union worker trying to pursue a class action lawsuit against his prior employer due to the employer requiring employees to enroll a scan of their hand geometry onto a biometric timekeeping device in order to clock in and out for work. Specifically, the Court held that federal labor law -- Section 301 of the Labor Management Relations Act (LMRA) -- preempts BIPA claims brought by union workers where their underlying collective bargaining agreement (CBA) contains a broad management rights provision. The ruling requires workers, whose employment is controlled by a CBA containing a broad management rights clause (which is common), to proceed with BIPA claims through the collective bargaining process; not through the courts. This decision serves as a major blow to those pursuing class action BIPA lawsuits where a union contract is in place. To be more clear, this decision can effectively shut down and close out BIPA lawsuits and the dreaded class action lawsuit.

Right on the heels of the Illinois Supreme Court’s decision in Tims, the Court delivered yet another crushing blow to Illinois businesses in Cothron v. White Castle System, Inc. Answering the crucial question of when a Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (BIPA), claim accrues for the collection and disclosure of biometric “identifiers,” the razor thin majority found that a separate claim accrues “each time a private entity scans or transmits” an individual’s biometrics.

The BIPA hits keep coming for employers and companies in Illinois. Today, in a long-awaited opinion in Tims v. Black Horse Carriers, Inc., the Illinois Supreme Court found that a five-year statute of limitations applies to all BIPA claims. This is not welcomed news for employers as it broadens the potential exposure under this biometric law that comes with the heaviest penalties for failure to comply—even if no injury is suffered.

With the holidays upon us, companies are assessing year-end to-do’s and considering what 2023 will bring. For companies employing California residents, compliance with the new California Privacy Rights Act (CPRA) should be at the top of their list. Indeed, to date, companies that employed California residents had a reprieve from the consumer-facing rules and requirements of the California Consumer Privacy Act (CCPA). The CCPA, which is, essentially, a data privacy “bill of rights” for Californians, even impacted many companies based outside of California but only as to their consumer-side relationships.

If companies that employ Illinois residents and use any type of equipment to scan fingers, hands, face, or eyes were not yet aware of and concerned by the Illinois’ biometric privacy law, the Illinois Biometric Privacy Act (BIPA), they should be now. On October 12, 2022, after a week-long trial, a federal jury returned a verdict finding that one of the nation’s largest railway companies, BNSF, had violated BIPA—to the tune of a $228 million judgment.

In today’s virtual world so much has changed – we work from home, we attend meetings from home, and now, many companies are hiring from home. Virtual interviewing is on the rise, and for good reason. Companies can interview from a wide-breadth of candidates across the country without having to fly interviewees to the main office. However, video conference platforms can also open business up to potential litigation and compliance risk. 

For the past several years, we have periodically reported regarding the proliferation of class actions and other litigation under the Illinois Biometric Information Privacy Act (BIPA).

Under BIPA, entities may not “collect, capture, purchase, receive through trade or otherwise obtain” or store a person’s biometric information without informing an individual in writing about the collection or storage of said information. Entities collecting biometric information must also specify the purpose for its collection and storage and how long it will be kept. Finally ...

Commercial air pilot and Air Force reservist Eric White filed a class action against United Airlines under the United Services Employee and Reemployment Right Act (USERRA) claiming United violated USERRA by not providing paid military leave to the same extent as other paid leave. The district court dismissed White’s lawsuit, but last month the 7^th Circuit ruled that paid leave falls within the definition of “rights and benefits” employees are entitled to pursuant to USERRA. The case has been sent back to district court.

Generally, USERRA provides that any person who is ...

Back in October 2020, we reported on the McDonald v. Symphony Bronzeville Park LLC decision,where the Illinois Court of Appeals for the First District ruled that the state Workers’ Compensation Act (WCA) and its exclusivity provisions do not bar claims for statutory damages under BIPA. The decision found that while the WCA provides remedies to workers that have sustained an actual injury, BIPA provides statutory, liquidated damages to employees who allege privacy right violations even when there is no injury and as a result, employees could continue to pursue BIPA ...

Even in the pandemic, the (high) number of class action filings based upon the Illinois Biometric Privacy Act (BIPA) remains steady. And, against that backdrop come two recent decisions that may impact how employers need to shift their defense strategies.

First, in McDonald v. Symphony Bronzeville Park LLC, the Illinois Court of Appeals ruled that the state Workers’ Compensation Act (WCA) and its exclusivity provisions do not bar claims for statutory damages under BIPA. The court distinguished the two, noting that while the WCA provides remedies to workers that have sustained ...

Due to COVID-19, everyone has been adjusting to daily life from home, including the youngest family members. Education is coming in the form of rapidly-developing technology that provides cybernetic classes and hangouts and the submission of coursework or “attendance” virtually. More businesses now have employees working remotely, using technology to stay in touch with co-workers and conduct meetings. However, this interfacing by schools, dance/music classes and management or team meetings may come with legal risk. The requirements of privacy laws, take, even the ...

In the face of billions of dollars of potential liability at trial, social media giant, Facebook, opted for the finality of a class-wide settlement—to the tune of $550 million—reached with Illinois users complaining of violations of the Illinois Biometric Information Privacy Act (BIPA). Facebook explained that the settlement was “in the best interest of [its] community and shareholders.” If approved by the court, the $550 million settlement will be the largest of its kind and will put an end to a case where Plaintiffs alleged that Facebook violated BIPA by collecting ...

In January 2019, we reported on the Illinois Supreme Court’s decision, Rosenbach v. Six Flags Entertainment Corp., where the highest court in Illinois unanimously found that an individual need not allege (or show) an actual injury to qualify as an “aggrieved” person under the Illinois’s Biometric Information Privacy Act (BIPA). This decision opened up the floodgates for additional, class action litigation under this Illinois statute.

Then, last week, in Patel v. Facebook, (a case that was originally filed in Illinois but later transferred to the Northern ...

As reported last November, the Illinois Supreme Court has had in front of it perhaps the seminal case, Rosenbach v. Six Flags Entertainment Corp., regarding Illinois’s Biometric Information Privacy Act (BIPA). Prior to landing before the Supreme Court, the lower (appellate) court had ruled that simply claiming a violation of the notice and consent requirements of BIPA was not tantamount to alleging a compensable injury. Branding such claims only “technical” in nature, the lower court found these were not cases or controversies. If that was all you had, said the ...