The Illinois Biometric Information Privacy Act (BIPA) went into effect in 2008. The Act is an effort to safeguard/regulate how private entities collect, use, and share biometric information and biometric identifiers. BIPA has been used to file class action lawsuits or attempted class action lawsuits against Facebook, Six Flags Amusement Park, ADP, Ritz Carlton, Panera, and Medieval Times to name a few. One case to watch is McDonald v. Symphony Bronzeville Park LLC, which is scheduled to be heard by the Illinois Supreme Court. The plaintiffs in that case have filed a lawsuit alleging violations of BIPA by the employer for requiring the employees to use a time clock system that scans their fingerprints without properly providing notice, provide a publicly available retention policy, or obtaining a written release by the employees. As part of its defense to the lawsuit, the employer cited Section 5 of the Illinois Workers’ Compensation Act as an affirmative defense. In other words, the employer’s defense to the BIPA claim was that the claim was precluded as these alleged violations were actually work injuries covered by the Workers’ Compensation Act.
A creative defense and work comp carriers took notice!
A few definitions are needed to frame the issue at hand:
- Private Entity: any individual, partnership, corporation, limited liability company, association, or other group, however organized. It does not include state or local government.
- Biometric information: any information, regardless how it is captured, converted, stored, or shared based on an individual’s biometric identifier used to identify an individual.
- Biometric identifiers: retina or iris scan, fingerprint, voiceprint or scan of hand or face geometry.
BIPA lays out a set of rules and a framework for private entities that use biometric data and identifiers, including the need for a written retention and destruction policy, written release, prohibition against selling data, restrictions on disclosure, and security requirements. Finally, and most importantly to our discussion today, is that BIPA created a private right of action that allows individuals to recover liquidated damages of $1,000.00 or actual damages (whichever is greater) for negligent violations, and liquidated damages of $5,000.00 or actual damages (whichever is greater) for intentional or reckless violations. Plaintiffs may also seek recovery of reasonable attorneys’ fees and costs. These claims can be expensive for employers and one can see why the employer in this case was eager to avoid liability under BIPA.
Generally speaking, an injured employee cannot seek and recover compensation under both the Workers’ Compensation Act and common law. Injuries that arise out of and in the course of employment is the sole province of the Workers’ Compensation Act. The Act imposes this liability without fault against the employer but in return prohibits common law suits being filed by the employee against the employer. This tradeoff is at the heart of the workers’ compensation law for the past 100 years. The employer is given immunity from common lawsuits in exchange for coverage of medical costs, missed time, and permanency, while the employee is not required to prove fault in order to collect benefits.
The Supreme Court is looking at the sole issue as to whether the Workers’ Compensation Act is the exclusive remedy and preempts employees’ BIPA claims against employers. The Appellate Court ruled that the exclusivity provision of the Act does not bar claims for statutory damages under BIPA. The Appellate Court reasoned that the Workers’ Compensation Act provides compensation for actual injuries while BIPA provides statutory or liquidated damages even when the employee had no injury. Under BIPA, the violation of the law is the harm. The Illinois Supreme Court previously found that BIPA plaintiffs do not need to demonstrate they have actually been harmed or injured to recover under BIPA. Without an actual injury, there is no recovery under the Workers’ Compensation Act.
If the Illinois Supreme Court finds differently, employers may face workers’ compensation claims for BIPA violations. This ruling is being closely watched as the larger BIPA class action lawsuits could be worth billions. We will continue to monitor this appeal closely.
Thanks to Frank Johnston for this timely summary. Frank represents Illinois employers from the firm’s Champaign office and will continue to update our clients on new developments.