Illinois Courts Begin Clarifying the Biometric Information Privacy Act

September 30, 2021

Earlier this year, McGuireWoods reported that, in 2021, Illinois courts are expected to decide several open issues related to the state’s Biometric Information Privacy Act (BIPA). Those opinions have recently begun to be issued, providing answers regarding BIPA’s statute of limitations and certain preemption arguments.

Tims v. Black Horse Carriers, Inc.

On Sept. 17, 2021, the Illinois Appellate Court for the First Judicial District issued an opinion in Tims v. Black Horse Carriers, Inc. regarding BIPA’s statute of limitations. Despite BIPA’s silence on the applicable statute of limitations, the court found that BIPA’s statute of limitations varies by section. Specifically, the court found that claims under section 15(c) and (d) of BIPA are subject to a one-year limitation period, while claims under section 15(a), (b) and (e) are subject to a five-year limitation period.

The court reasoned that the one-year limitation period, found in section 13-201 of Illinois’ Code of Civil Procedure (the Code) and which governs “publication of matter violating the right of privacy[,]” applies to BIPA sections (c) and (d) because these sections both clearly include an element of publication or disclosure of biometric data. In particular, it is a section 15(c) violation for a private entity to “sell, lease, trade or otherwise profit from” biometric identifiers or information it possesses. Likewise, it is a section 15(d) violation for a private entity to “disclose, redisclose, or otherwise disseminate” biometric identifiers or information absent certain exceptions outlined in section 15(d)(1) through (4).

Conversely, the court held that violations under BIPA sections 15(a), (b) or (e) involve “absolutely no element of publication or dissemination.” Actions under these sections charge private entities with failing to develop BIPA-required written policies governing retention and destruction of biometric data (15(a)); obtaining biometric data without providing notice and receiving a written release (15(b)); or failing to take reasonable care in storing, transmitting and protecting biometric data (15(e)). The court found that these sections are more appropriately subject to the Code’s five-year limitation period for “all civil actions not otherwise provided for.”

The court’s opinion also mentioned that BIPA allows aggrieved parties to recover for “each violation” and that plaintiffs therefore could collect multiple recoveries if they prove violations of multiple duties under BIPA. Plaintiffs may attempt to leverage this language and suggest that “per-scan” damages are recoverable (as discussed below). However, importantly, the court’s ruling was narrowly limited to the certified question regarding the applicable statute of limitations.

Fernandez, et al. v. Kerry, Inc.

On Sept. 20, 2021, a mere six days after hearing oral argument, the United States Court of Appeals for the Seventh Circuit affirmed a district court decision to dismiss lead plaintiff Maximo Fernandez’s class action BIPA case. The Seventh Circuit agreed with the district court that Fernandez’s suit was preempted by §301 of the Labor Management Relations Act (LMRA), 29 U.S.C. §185, because resolution of the case depended on interpretation of the collective-bargaining agreements between the defendant, Kerry, Inc., and the plaintiffs’ union. The court relied on its prior opinion in Miller v. Southwest Airlines Co., which held that portions of the Railway Labor Act akin to §301 prohibit workers from directly bargaining with their employers about clocking in and out. The court found that the LMRA did not call for a different result, and that any question about whether the union consented to biometric collection was a proper subject for arbitration if called for under the collective bargaining agreement and requested by the union.

Cothron v. White Castle System, Inc.

On the same day as the Seventh Circuit heard the Fernandez arguments, it also heard oral arguments in Cothron v. White Castle System, Inc., a case set to decide whether each scan of an employee’s biometric information is a separate violation of BIPA sections 15(b) and (d). As White Castle’s counsel pointed out during oral argument, a decision in the plaintiff’s favor in this matter would result in an explosion of BIPA damages that could, in many cases, bankrupt Illinois businesses.

While the Seventh Circuit was quick to decide Fernandez, as of the time of this publication, a decision has yet to be issued for Cothron. The court’s questioning at oral argument also suggested that it may certify the damages question presented in Cothron to the Supreme Court of Illinois rather than decide the issue itself. The panel highlighted that federal courts handle many BIPA cases only because of Class Action Fairness Act removal and suggested that this has hindered Illinois appellate courts from interpreting BIPA.

However, in 2019, the Illinois Supreme Court did weigh in on BIPA in Rosenbach v. Six Flags Entertainment Corp. and unanimously concluded that an employee need not have suffered an actual injury to seek liquidated damages under BIPA. Given Rosenbach, many Illinois employers are hoping the Seventh Circuit elects to decide the impactful issues in Cothron itself.

McDonald v. Symphony Bronzeville Park LLC

Most recently, on Sept. 23, 2021, the Illinois Supreme Court heard oral arguments regarding whether BIPA statutory damages claims brought by employees against their employers are preempted by the Illinois’ Workers’ Compensation Act (WCA). During argument, the court questioned whether the defense’s interpretation would be contrary to BIPA’s language and defeat the purpose of the statue. The court also questioned whether employer BIPA violations are intentional acts such that they would be excluded from WCA coverage. However, the court also extensively questioned McDonald’s position. The court questioned why an employee’s injury for loss of a privacy right in the workplace should be treated any differently from an unintentional physical or emotional injury suffered in the workplace, both of which would be covered by the WCA. The court also questioned whether McDonald was arguing that all BIPA claims are excluded from the WCA despite the lack of language in either statute expressly making such an exclusion.

The argument provides some hope for employers that the Illinois Supreme Court will find the preemption defense valid at least in part.

What’s Next?

The BIPA rulings to date have been a mixed bag for employers. For unionized workplaces, Fernandez is yet another strong preemption decision for BIPA claims pending in federal court. However, the appellate court ruling in Tims continues to apply a five-year limitations period for the more prevalent section 15(a) and 15(b) claims. Employers would be wise to watch for the forthcoming decisions in Cothron and McDonald, as well as other pending BIPA Illinois state court appeals which will impact BIPA claims and defenses.

For more information on BIPA requirements for employers, please see McGuireWoods’ prior publication or contact the authors, other members of the McGuireWoods labor and employment team, or your McGuireWoods contact.