February 20, 2020

Doing Business in Illinois? Two BIPA Developments Should Be on Your Radar

Class action lawsuits brought under the Illinois Biometric Information Privacy Act (BIPA) continue to flood court dockets. These cases typically allege failure to comply with various procedural requirements, such as notice and consent, before collecting or using so-called biometric information or biometric identifiers. Judicial treatment of BIPA claims and defenses continues to take shape as these cases proceed through the courts. Two recent cases suggest that courts may be amenable to limiting BIPA’s scope, which could benefit employers and others subject to BIPA lawsuits.

First, in McDonald v. Symphony Bronzeville Park, LLC, 2017 CH 11311, the Illinois Appellate Court’s First District (which encompasses Cook County) has agreed to review whether BIPA claims raised in the employment context – most commonly in connection with so-called biometric time clocks – are preempted by the Illinois Workers’ Compensation Act (IWCA). Generally speaking, an employee injured in the course of employment must seek relief under the workers’ compensation process, not through a lawsuit. Defendants in certain BIPA cases involving biometric time clocks have argued that such claims are employment injuries covered by workers’ compensation.

In McDonald, for the first time, an Illinois appellate court will address whether employees’ BIPA claims are preempted by the IWCA, thereby precluding separate litigation. Briefing on this issue began this month, and multiple BIPA cases have been put on hold, pending the outcome of the case. A decision in favor of the defendant could significantly impact BIPA litigation in the employment context.

Second, in Robertson v. Hostmark Hospitality Group, 2018 CH 5194, a Cook County Circuit Court took on the issue of when a BIPA claim “accrues” – that is, when the clock starts running – for statute of limitations purposes. BIPA does not contain its own statute of limitations, and thus courts have recently wrestled with how to address what limitations period applies for BIPA claims and when such limitations period begins.

In Robertson, the court concluded that certain BIPA claims accrue with the first and only “injury,” which is when consent should have been but was not obtained, rejecting a “continuing violation” theory that holds that a violation continues every time a biometric time clock is used. Under the Robertson Court’s reasoning, the time period to file a lawsuit for BIPA violations is measured from when a biometric time clock is first used and not its last use. The scope of any potential class would likewise be limited to this period.

How these developments will affect the recent avalanche of BIPA litigation remains to be seen, but these cases present potentially viable arguments that defendant-employers should evaluate and consider. Meanwhile, companies that are collecting biometrics, or might be accused of doing so, should continue to evaluate their policies for compliance with this popular statute of the plaintiffs’ bar.

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