Biometric Privacy Act and Employment Class Actions in 2021: Recent Decisions on Damages and Union Lawsuits

Description

There remains a significant number of class action filings based upon BIPA. Several recent decisions may impact how employers should alter their defense strategies.

Employers' counsel should be aware that the Illinois Supreme Court ruled that alleging a violation of statutory rights under BIPA is sufficient. An individual does not have to allege an actual injury to qualify as an "aggrieved" person entitled to seek liquidated damages and injunctive relief against collecting biometric data for time-tracking or security purposes. All companies with a presence in Illinois--particularly technology companies--must review their policies and protocols now; simply failing to comply with the statute's requirements can result in claims by affected employees.

Presently, The Illinois Workers' Compensation Act (WCA) and its exclusivity provisions do not bar claims for statutory damages under BIPA. But the Illinois Supreme Court has agreed to resolve, on a certified question, whether the WCA pre-empts BIPA claims in an employment context. There are also unresolved issues relating to the appropriate statute of limitations, and whether contribution claims against biometric time clock vendors are viable.

In addition, the U.S. Northern District of Illinois determined that a collective bargaining agreement preempted workers from pursuing a BIPA action in federal court.

To mitigate the risk of a BIPA claim, counsel to companies should evaluate BIPA compliance, identify any biometric information being collected, and examine disclosures currently in place. Employers should make disclosures easily accessible to employees, understand recent court decisions, and be aware of pending BIPA regulations.

Listen as our expert panel discusses BIPA employment class action decisions and what effect these rulings may have on pending litigation in the future. The panel will provide best practices for creating a compliance program to address future risks.