BIPA:  The Ongoing Threat of Employee Class Actions and Recent Developments

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October 9, 2020
Molly Arranz and Carlos Arévalo
SmithAmundsen Data Privacy, Security and Litigation Alert
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Even in the pandemic, the (high) number of class action filings based upon the Illinois Biometric Privacy Act (BIPA) remains steady. And, against that backdrop come two recent decisions that may impact how employers need to shift their defense strategies.

First, in McDonald v. Symphony Bronzeville Park LLC, the Illinois Court of Appeals ruled that the state Workers’ Compensation Act (WCA) and its exclusivity provisions do not bar claims for statutory damages under BIPA. The court distinguished the two, noting that while the WCA provides remedies to workers that have sustained an actual injury, BIPA provides statutory, liquidated damages to employees who allege privacy right violations even when there is no injury. This outcome should come as no surprise given past rulings on what an employee or consumer needs to show to pursue a BIPA claim. Thus, as it relates to BIPA claims, the WCA exclusivity defense is no longer viable – or at least for the time being, since this case will likely be appealed to the Illinois Supreme Court.

In a second decision, Williams v. Jackson Park SLF, LLC, the Northern District of Illinois held that union workers under a collective bargaining agreement are preempted from pursuing a BIPA cause of action in federal court. The overall success of this argument, though, may be limited as the court is allowing the plaintiff to amend its complaint, meaning the case may still be litigated by non-union class members. It remains to be seen what defenses to the merits—and perhaps, more importantly, to class certification—can be advanced with an amended complaint and amended class definition.

On balance: it has been 12 years since BIPA was enacted, but there are still so many questions that are being battled in court as employers and employees continue to navigate this biometric privacy law. One thing is for certain: BIPA packs a punch with eye-popping statutory damages and monetary awards that can lead to anywhere from $1,000 to $5,000 per violation plus attorneys’ fees. Moreover, considering that an alleged violation is enough to bring a suit, BIPA is a class action dream – bearing in mind if an employer is collecting biometric data on one individual, it is collecting it on many individuals.

To avoid finding yourself facing a BIPA class action, the best thing you can do as an employer is ensure basic compliance in the first place:

Want to learn more about BIPA and how you can avoid the threat of a class action? Join Molly Arranz and Carlos Arévalo for a complimentary webcast on October 29.