Agreeing with earlier decisions by the United States Court of Appeals for the Seventh Circuit, the Illinois Supreme Court recently held in Walton v. Roosevelt University¹ that federal labor law preempts employee claims for violations of the Illinois Biometric Information Privacy Act (BIPA)² when the employee is covered by a collective bargaining agreement (CBA) that contains a broad management rights clause.  According to the Illinois Supreme Court, such claims “must be resolved according to federal law and the agreement between the parties.”³ This decision affirms a unionized employer’s ability to rely on the preemption defense, and results in uniformity concerning the applicability of federal law when an employer invokes a broad management rights clause from a CBA in response to a BIPA claim, whether the claim is asserted in federal or state court.

William Walton (Walton), a former campus safety employee at Roosevelt University (Roosevelt) and a member of Service Employees International Union (SEIU) Local 1, filed a complaint in state court against Roosevelt alleging that Roosevelt required him and similarly situated employees to enroll scans of their “hand geometry” in a biometric timekeeping device, without Roosevelt having established a written data retention policy made available to the public and without obtaining employee consent, in violation of BIPA.⁴ Relying upon the Seventh Circuit’s decision in Miller v. Southwest Airlines Co.⁵, Roosevelt moved to dismiss the complaint alleging that Walton’s BIPA claims were preempted by Section 301 of the Labor Management Relations Act⁶ (LMRA).⁷ As a bargaining unit employee, the manner in which Walton clocked in and out was covered by a sufficiently broad management rights clause in the CBA, and thus, Roosevelt argued, Walton’s BIPA claim was preempted by the LMRA.⁸

The Circuit Court of Cook County, Illinois found Miller distinguishable and denied Roosevelt’s motion to dismiss, holding that preemption was inapplicable because a claim under BIPA “is not intertwined with or dependent substantially upon consideration of terms of a collective bargaining agreement where a person’s rights under BIPA exist independently of both employment and any given CBA.”⁹ Thereafter, Roosevelt filed a motion to reconsider or, in the alternative, to certify a question for immediate appeal.¹⁰   The Circuit Court denied the motion to reconsider, but certified the issue for interlocutory appeal.¹¹ Specifically, the Circuit Court asked whether “Section 301 of the Labor Management Relations Act (29 U.S.C. [ ] § 185 [(2018)]) preempt[s] [Biometric Information Privacy Act] claims (740 ILCS 14/1 [(West 2018)]) asserted by bargaining unit employees covered by a collective bargaining agreement?”¹²

The Appellate Court for the First District of Illinois, relying upon both Miller and Fernandez v. Kerry,¹³ a recent Seventh Circuit decision that found that BIPA claims asserted by bargaining unit employees covered by a collective bargaining agreement were preempted under federal law, answered the question in the affirmative, holding that the federal decisions “reached the proper conclusion [that BIPA] contemplates the role of a collective bargaining unit acting as an intermediary on issues concerning an employee’s biometric information.”¹⁴ The Appellate Court concluded that Roosevelt met its burden to demonstrate that the claims are preempted under federal law.¹⁵ Therefore, “Walton and his fellow unionized employees [were] not prohibited from pursuing redress for a violation of their right to biometric privacy—they [were] simply required to pursue those rights through the grievance procedures in their collective bargaining agreement rather than in state court in the first instance.”¹⁶

The Illinois Supreme Court granted leave to appeal and agreed, unanimously, with the Appellate Court’s decision, and also answered the certified question in the affirmative.  Noting the importance of maintaining a uniform body of law in interpreting federal statutes,¹⁷ the Illinois Supreme Court deferred to Miller and Fernandez, which held that unions constituted authorized agents under BIPA and that whether the union consented to the collection and use of a plaintiff’s biometric data through the management rights clause is a question to be addressed in accordance with the CBA.¹⁸ Indeed, the Illinois Supreme Court noted that Miller and Fernandez are not “without logic or reason” and “[g]iven the language in the CBA and the LMRA, it is both logical and reasonable to conclude any dispute must be resolved according to federal law and the agreement between the parties.”¹⁹

Walton represents a rare win for BIPA defendants before the Illinois Supreme Court, which prior to the Walton decision, has predominantly accepted plaintiffs’ arguments in BIPA related matters. For employers with unionized workforces, Walton effectively negates the ability of employees covered under broad management rights clauses within CBAs to pursue lawsuits asserting claims under BIPA in either state or federal court.  Rather, bargaining unit employees must grieve any BIPA claims through the dispute resolution procedure set forth in the CBA, specifically through any previously established grievance-arbitration process. When negotiating an initial or renewal CBA, employers should prepare to bargain over consent and the applicable procedures for collecting biometric identifiers or biometric information through timekeeping devices or other means, where applicable. Finally, such employers should review their CBAs to ensure inclusion of appropriate language in the management rights clauses in light of the Walton decision so as to capture employer policies and procedures that may implicate BIPA and further steer any biometric claims to grievance-arbitration on an individual, rather than class, basis.

FOOTNOTES

¹ Walton v. Roosevelt Univ., 2023 IL 128338, ¶ 31 (Ill. Mar. 23, 2023).

² 740 ILCS 14/1, et seq.

³ Walton, 2023 IL 128338, at ¶ 31.

⁴ Id. at ¶ 4.

⁵ Miller v. Southwest Airlines Co., 926 F.3d 898, 903 (7th Cir. 2019).

⁶ 29 U.S.C. § 185.

⁷ Walton, 2023 IL 128338 at ¶ 5.

⁸ Id. at ¶ 31.

⁹ Id. at ¶6 (internal quotations omitted).

¹⁰ Id. at ¶ 7.

¹¹ Id.

¹² Id.

¹³ Fernandez v. Kerry, Inc., 14 F.4th 644 (7th Cir. 2021).

¹⁴ Walton, 2023 IL 128338, at ¶ 10.

¹⁵ Id. at ¶ 12.

¹⁶ Id. (internal quotations omitted).

¹⁷ Id. at ¶24.

¹⁸ Walton, 2023 IL 128338, at ¶¶ 26-30.

¹⁹ Id. at ¶ 31.