Welcome to Vedder Price’s inaugural edition of the BIPA Bellwether.  As with our TCPA Turnstile, we intend for the BIPA Bellwether to serve as a periodic report on latest developments.

Last week, the Supreme Court of Illinois issued an order that likely will clarify when Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14 et seq., claims may be asserted in the employment context.  This order comes at a time when BIPA cases are surging and Illinois appellate court decisions interpreting the act are scarce.  As a result, the Court’s order—and the decision that will follow—signal a potential avenue for dismissal that may provide much needed guidance for BIPA litigants.

In McDonald v. Symphony Bronzeville Park, LLC., No. 1-19-2398, the Court granted the defendants’ petition for appeal.  The plaintiff alleged that her employer violated BIPA by requiring employees to scan their fingerprints on a fingerprint-based time clock system without following several of BIPA’s requirements.  In response, the defendants moved to dismiss the plaintiff’s BIPA claims, arguing that because the plaintiff’s claims arose during the course of her employment with the defendant, the claims were barred by the Illinois Workers’ Compensation Act (“IWCA”), 820 ILCS 305 et seq.  The Circuit Court, however, denied the defendants’ motion to dismiss, but later certified the following question for interlocutory appeal:

Do[] the exclusivity provisions of the [IWCA] bar a claim for statutory damages under [BIPA] where an employer is alleged to have violated an employee’s statutory privacy rights under [BIPA]?

McDonald v. Symphony Bronzeville Park LLC, 2020 IL App (1st) 192398, ¶ 1.  The appellate court answered that question in the negative.  In doing so, the court of appeals reasoned that because the plaintiff’s BIPA claims alleged only statutory damages, the plaintiff’s injury did not represent “the type of injury that categorically fits within the purview of the Compensation Act, which is a remedial statute designed to provide financial protection for workers that have sustained an actual injury.” Id. at ¶ 27 (emphasis added).

Having granted the defendants’ petition for appeal, the Supreme Court of Illinois is expected to provide further guidance on the relationship between BIPA and the IWCA.  And although it is difficult to predict what the Court may decide, a reversal of the lower court’s decision could significantly limit litigants’ ability to bring BIPA claims against their employers.  Regardless of the outcome, the Court’s order exhibits a heightened interest by the state’s highest court in this rapidly evolving area of law.