Companies with Illinois employees have been bombarded with class action lawsuits under the Illinois Biometric Information Privacy Act (BIPA) over the last several years. These lawsuits generally allege that employers have not complied with BIPA’s notice and consent requirements before collecting or disclosing employees’ biometrics. One of the defenses has been that such claims are preempted under the Illinois Workers’ Compensation Act (IWCA) as workplace injuries, and thus cannot be brought in court. However, on February 3, 2022, in a long-awaited decision, the Illinois Supreme Court held in McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511, that preemption does not apply to BIPA claims raised by employees for damages, thereby allowing such claims to proceed in court.
It has long been settled in Illinois that employees injured in the course of employment typically must seek relief only through the workers’ compensation process. This “exclusivity” requirement precludes lawsuits over workplace injuries. Therefore, for BIPA claims raised by employees – such as in cases involving so-called biometric time clocks – employers have asserted that such claims may not proceed in court.
Although courts to date have not been receptive to this workers compensation preemption view, the Illinois Supreme Court agreed to address this issue in McDonald. In the interim, many courts have stayed BIPA cases pending this decision.
Seizing on the Illinois Supreme Court’s seminal ruling in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 that any violation of BIPA presents a “real and significant injury” for which statutory damages may be sought, the defendant (and a broad array of amici) argued that any such violation was an accidental, employment-related “injury” precluding a lawsuit for damages. The plaintiff (and its own coterie of amici) argued that only physical or psychological injuries are preempted by the IWCA.
In agreeing with the plaintiffs’ bar and finding workers compensation preemption did not apply, the Illinois Supreme Court determined that the type of injury allegedly sustained by a BIPA violation is not compensable under the IWCA. Rather, the “personal and societal injuries” caused by BIPA violations are different from “physical and psychological work injuries.” And although the court recognized the potential “substantial” financial consequences for employers stemming from class action BIPA lawsuits, it deferred to the Illinois legislature if “a different balance should be struck.”
Notably, the magnitude of these “substantial” consequences is also teed up for the Illinois Supreme Court (via a certified question by the Seventh Circuit in Cothron v. White Castle System, Inc.), regarding whether each alleged biometric time clock scan is a potentially actionable BIPA violation. Depending on the Supreme Court’s holding on this issue, the consequences for non-compliance can become even more dramatic.
With the McDonald decision, long-stayed BIPA litigation will be revived. With workers compensation preemption no longer a potential defense to BIPA claims for damages, BIPA class action filings likely will continue. As noted in previous alerts on this topic businesses that may be collecting biometrics should ensure they are complying with BIPA’s multiple procedures concerning notice, consent, retention and other similar obligations. Moreover, in light of the court’s admonition that these issues are for the legislature to decide, businesses should also consider contacting their trade associations and government relations resources.