Influx of Class Actions Expected Against Employers Who Use Biometric Information

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Six Tips for Employers following the Supreme Court’s Ruling in Rosenbach v. Six Flags Entertainment Corp.

The Illinois Biometric Privacy Act has been around since 2008, but a recent Illinois Supreme Court opinion has breathed new life into the statute. The Act governs private entities' use of "biometric identifiers," which include a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry. The most common use of such information in the employment context is for timekeeping purposes, such as using employee fingerprint scans to clock in and clock out of work (a handy tool to avoid time theft).

In late 2017, the Illinois Court of Appeals held that an individual could not bring a claim pursuant to the Act unless they alleged that some “actual harm” resulted from a violation of the Act. In 2019, the Illinois Supreme Court reversed that holding, finding that plaintiffs do not need to allege actual harm to recover under the statute, all they need to allege is a technical violation of the statute.

The Supreme Court’s decision will no doubt result in an influx of class action litigation against employers who use employees’ biometric information and do not comply with the provisions of the Act. As a violation of the Act can result in hefty damages, we recommend that employers do the following:

For further assistance with these issues, contact Elizabeth M. Pall at 312/840-7099 or Rachel E. Yarch at 312/840-7029.

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Chicago, Illinois 60611-3607
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