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.
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On December 15, 2021, the First District of the Illinois Appellate Court decided a heavily litigated issue under the Illinois Biometric Information Privacy Act (BIPA): When does the statute of limitations to file suit under BIPA start to run? In more technical terms, when does a claim accrue under BIPA? In the first appellate court decision addressing this issue, Watson v. Legacy Healthcare Financial Services, LLC, the court held that BIPA claims accrue each time an entity captured biometrics in violation of BIPA.
The plaintiff in Watson brought a putative class action lawsuit under BIPA in the Circuit Court of Cook County, Illinois, alleging that the defendant did not comply with BIPA’s multiple procedural requirements in deploying a so-called biometric timeclock that scanned employees’ fingerprints or handprints. The trial court held that the statute of limitations for plaintiff’s BIPA claims was five years — a conclusion mostly consistent with a subsequent appellate court decision on this issue. It also concluded that plaintiff’s claims accrued with the first alleged biometric scan. Since plaintiff’s initial scan occurred more than five years before he filed suit, the court held his suit was time-barred.
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In the past 15 months, employers have juggled many new and unique situations. Indeed, employers have been navigating their way through complex federal, state and local COVID-19 guidelines, while their employees have faced their own challenges related to work, family, and possible health concerns. As more employees return to the office, it may be a good time for employers to conduct a mid-year compliance check-up to identify any areas that need attention as COVID-19 mitigation protocols wane. Here are a few areas that Illinois employers should consider reviewing.
Class action litigation under the Illinois Biometric Information Privacy Act (BIPA) has exploded over the last several years. An ongoing issue has been the proper forum for such cases, namely whether there is constitutional, Article III “standing” for BIPA claims to proceed in federal court. A May 5 ruling out of the Seventh Circuit Court of Appeals brought much-needed clarity to the issue by holding that a federal court could hear certain BIPA claims.
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