Illinois Supreme Court Rejects Workers' Compensation Act Preemption of Biometric Information Privacy Act Claims

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On February 3, 2022, in its decision in McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511, the Illinois Supreme Court dealt a final blow to employers who hoped to use the Illinois Workers' Compensation Act to avoid liability for employee lawsuits under the Illinois Biometric Information Privacy Act ("BIPA").

BIPA governs private entities' use of "biometric identifiers," which include retina or iris scans, fingerprints, voiceprints, or scans of hand or face geometry. In the employment context, the most common uses of such information are for timekeeping purposes, such as using employee fingerprint scans to clock in and clock out of work (to avoid time theft), or for access to secure buildings or areas (to limit access to trade secrets, other confidential information, or hazardous areas).

Thanks to a wave of plaintiff-friendly rulings from Illinois courts and the fact that BIPA allows a person to recover statutory damages for a violation of BIPA without showing any actual damage, BIPA class action litigation has surged over the last several years.  Employers are often the target of BIPA class actions, and one defense employers often asserted was that BIPA claims brought by employees were preempted by the Workers' Compensation Act.  Specifically, employers argued the Workers' Compensation Act is the exclusive remedy for injuries occurring in the workplace, such that an employee cannot recover damages from an employer for injuries incurred during the course of employment outside the Workers' Compensation Act.

In McDonald, the justices of the Illinois Supreme Court unanimously and resoundingly ruled that BIPA claims brought by employees against their employers are not preempted by the Workers' Compensation Act.  The Court ruled that the privacy-based "injuries" governed by BIPA are not the type of physical and/or psychological workplace injuries covered by, and compensable under, the Workers' Compensation Act.  The latter, the court noted, "affect[s] an employee's capacity to perform employment-related duties, which is the type of injury for which the workers' compensation scheme was created," while BIPA "involves prophylactic measures to prevent compromise of an individual's biometrics."  Therefore, the court rejected the defendant employer's argument that the BIPA claims brought by the plaintiff employee were preempted by the Workers' Compensation Act.

In state and federal courts across Illinois, employees' BIPA lawsuits were stayed pending the Supreme Court's ruling in McDonald.  Now that the court has ruled that BIPA claims are not preempted by the Workers' Compensation Act, employers will have one fewer defense to assert to BIPA claims, which may lead to a wave of class-wide settlements.

The decision in McDonald should also serve as both a wake-up call and a reminder to employers who use biometric scanning in Illinois.  BIPA class actions against employers are not going away any time soon, and – with statutory per-person damages under BIPA of $1,000 for a negligent violation and $5,000 for a willful violation – many employers who use employees' biometric information and do not comply with the provisions of BIPA could face class action lawsuits that could potentially put them out of business.

Andrew LeMar is a partner in Burke, Warren, MacKay & Serritella, P.C.'s Class Action, Litigation, and Consumer Financial Services Litigation groups.  The firm's Class Action Practice Group has significant experience defending BIPA class actions and counseling clients on BIPA compliance.  For more information on the impact of McDonald on Illinois employers or how your company can comply with BIPA, please contact Andrew LeMar at alemar@burkelaw.com or (312) 840-7108, Rachel Bossard at rbossard@burkelaw.com or (312) 840-7029, Victoria Collado at vcollado@burkelaw.com or (312) 840-7048, or Danielle Gould at dgould@burkelaw.com or (312) 840-7070.

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