The Illinois Supreme Court recently agreed to hear an appeal of an Appellate Court’s decision addressing whether an employee’s claim for damages under Illinois’s Biometric Information Protection Act is preempted by the exclusivity provisions of the Illinois Workers’ Compensation Act (“IWCA”). Back in September, the Illinois Appellate Court for the First Judicial District held that employees’ BIPA claims were not preempted under the Illinois Workers’ Compensation (IWCA) and could go forward.

The BIPA requires companies that collect and use biometric information to establish a policy and obtain a written release prior to collecting such data. Under the BIPA, individuals may sue for violations and, if successful, can recover liquidated damages ranging from $1,000 (or actual damages, whichever is greater) for negligent violations to $5,000 for intentional or reckless violations — plus attorneys’ fees and costs.

Over the past few years there has been a significant number of lawsuits under the BIPA, particularly after the Illinois Supreme Court held in 2019, in Rosenbach v. Six Flags,  that individuals need not allege actual injury or adverse effect, beyond a violation of his/her rights under BIPA, in order to qualify as an “aggrieved” person and be entitled to seek liquidated damages, attorneys’ fees and costs, and injunctive relief under the Act. A key defense for employers defending BIPA lawsuits has been that the BIPA is preempted by the IWCA.

The plaintiff in Illinois Supreme Court’s most recent case alleged that that their employer violated BIPA by requiring that employees use a fingerprint time clock system without properly: (1) informing the employees in advance and in writing of the specific purpose and length of time for which their fingerprints were being collected, stored, and used; (2) providing a publicly available retention schedule and guidelines for permanently destroying the scanned fingerprints; and (3) obtaining a written release from the employees prior to the collection of their fingerprints.  The employer moved to dismiss the complaint based on several arguments, including the assertion that the plaintiff’s claims would be barred by the exclusivity provisions of the IWCA.  The trial court denied the motion the dismiss, but certified the question for appeal regarding whether the IWCA exclusivity provisions bar a claim for statutory damages under the BIPA.

In September of 2020, the Appellate Court emphasized that the IWCA generally provides the exclusive means by which an employee can recover against an employer for a work-related injury, however an employee can escape the exclusivity provisions of the IWCA if the employee establishes that the injury: 1) was not accidental, 2) did not arise from their employment, 3) was not received during the course of employment or 4) was not compensable under the IWCA.  Focusing on the fourth exception, the Appellate Court concluded that a BIPA claim limited to statutory damages is not an injury compensable under the IWCA, and thus the plaintiff’s claims qualified under the fourth exception and were not preempted by the IWCA.

The Appellate Court, relying on Rosenbach, highlighted that because actual harm is not required under the BIPA to maintain a statutory damages claim, it does not,

“[f]it 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.”

The Illinois Supreme Court has now granted leave to appeal the Appellate Court’s ruling, addressing the issue of whether injuries resulting from BIPA claims fall under the scope of the IWCA. While there is no telling how the Supreme Court will ultimately rule, it certainly leaves open the possibility that the Court’s decision will help reign in the significant number of lawsuits, including putative class actions, filed under the BIPA.

If they have not already done so, companies should immediately take steps to comply with the statute. That is, they should review their time management, point of purchase, physical security, or other systems that obtain, use, or disclose biometric information (any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry used to identify an individual) against the requirements under the BIPA. In the event they find technical or procedural gaps in compliance – such as not providing written notice, obtaining a release from the subject of the biometric information, obtaining consent to provide biometric information to a third party, or maintaining a policy and guidelines for the retention and destruction of biometric information – they need to quickly remedy those gaps.  For additional information on complying with the BIPA, please see our BIPA FAQs.