Biometric Privacy and Workers’ Rights

Companies with Illinois employees have been targeted in recent years with class action lawsuits under the Illinois Biometric Information Privacy Act (BIPA). These lawsuits generally allege that employers have not and are not in compliance with BIPA’s notice and consent requirements before collecting or disclosing employees’ biometric information, including fingerprints, retina scans and facial recognition scans.

One of the defenses has been that such claims are preempted under the Illinois Workers’ Compensation Act as workplace injuries and, therefore, cannot be brought in court. However, on February 3, 2022, the Supreme Court of Illinois unanimously decided that the Workers’ Comp Act does not preempt claims for liquidated damages under BIPA in McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511.

Companies defending these cases long claimed the Workers’ Comp Act provided the “exclusive means by which an employee can recover against an employer for a work-related injury.” Relying on the Illinois Supreme Court’s previous ruling in Rosenbach v. Six Flags Entertainment Corp., that any violation of BIPA presents a “real and significant injury” for which statutory damages may be sought, these defendants argued that any such violation was an accidental, employment-related “injury” precluding a lawsuit for damages. Although courts to date have not been receptive to this workers’ compensation preemption view, the Illinois Supreme Court agreed to address this issue in McDonald, with countless trial courts staying BIPA cases pending this decision.

Now in McDonald, the Illinois Supreme Court held that permitting BIPA claims to proceed despite the Workers’ Comp Act’s “exclusivity provision” is in accordance with the plain language of each statute and follows the General Assembly’s intent. The Illinois Supreme Court specifically discounted the argument that ruling against them would create the potential for a flood of devastating class actions causing financial ruin to Illinois businesses. The court found that claim unpersuasive and further admonished that any issue with the statute should be taken up with and resolved by the legislature, not the courts.

With the McDonald decision, long-stayed BIPA litigation will be revived. With workers’ compensation preemption no longer a potential defense to BIPA claims for damages, BIPA class action filings will inevitably continue. In the interim, and in accordance with the Court’s admonition that these issues are for the Illinois legislature to decide, we anticipate that the fight over the future of BIPA is not over, it’s just changing venues.

Romanucci & Blandin LLC handles BIPA lawsuits on behalf of working Illinoisans across the state to recover for violations of their BIPA rights. If you have any questions, contact our BIPA enforcement team at 312.815.2326.



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