Illinois Supreme Court removes BIPA defense for employer defendants

The Illinois Supreme Court recently affirmed a lower court holding that the Biometric Information Privacy Act, more commonly known as BIPA, is an independent employee cause of action, which is not preempted by the Workers’ Compensation Act. BIPA prohibits employers from collecting their employees’ biometric information without employee consent. Unlike similar prohibitions in other jurisdictions, the Illinois law provides a private right of action for the aggrieved employee and statutory damages for each violation of the act.

The case in question is Marquita McDonald v. Symphony Bronzeville Park LLC et al. The Illinois Supreme Court considered this certified question from the trial court, “Do the exclusivity provisions of the Workers’ Compensation Act bar a claim for statutory damages under [BIPA] where an employer is alleged to have violated an employee’s statutory privacy rights under [BIPA]?” (Decision at ¶9). The First District Court of Appeals answered this question in the negative. The Illinois Supreme Court agreed.

In reaching its decision, the Supreme Court analyzed the type of injury complained of in determining whether the Workers’ Compensation Act preempted the employee’s BIPA claim. The Court held, “The (Workers’) Compensation Act’s main purpose is to provide financial protection for an injured worker until they can return to the workforce.” Id. at ¶41. The Court found employee injuries addressed by BIPA to be different in kind: “(t)he personal and societal injuries caused by violating the (BIPA’s) prophylactic requirements are different in nature and scope from the physical and psychological work injuries that are compensable under the (Workers’) Compensation Act.” Id. at ¶43. Given the differences in injuries addressed by each act, the Justices found that BIPA created a private employee right of action separate and apart from causes of action governed by Workers’ Compensation Act. As such, the Workers’ Compensation Act does not preempt BIPA actions brought by employees in Circuit Court. This removes a defense raised by many employer BIPA defendants.   

Keen BIPA observers should expect more news soon. BIPA reform has been a popular topic for Springfield legislators and House Minority Leader Jim Durkin has introduced a bill that would limit violations under BIPA to actual damages incurred for negligent violations of the Act. (See House Bill 559). Reforming BIPA is also a priority of the Chicagoland Chamber of Commerce.

We also should expect more BIPA rulings from the state’s highest court in the coming months. The Illinois Supreme Court allowed an appeal of the Tims v. Black Horse Carriers, Inc. decision that addressed the various statute of limitations applicable to BIPA. The First District Tims Panel held BIPA actions for “slander, libel or for publication matter violating the right of privacy,” must be brought within one year of accruing. Differently, the Tims Court established a five-year statutory period for all other violations of BIPA that do not involve the publication, sale or profiting from gathering biometric information. BIPA defendants are hopeful that the Illinois Supreme Court will find that a one-year statute of limitations applies to all BIPA claims, which will limit the size of classes seeking extraordinary statutory penalties.

The Illinois Supreme Court also agreed to hear a question of accrual certified by the Seventh Circuit Court of Appeal. In Cothron v. White Castle Sys., Inc., the Seventh Circuit asked the Illinois Supreme Court to determine whether a BIPA violation occurs with each collection of biometric information without notice or written consent or just the first time that biometric information is collected. 20 F.4th 1156, 1159 (7th Cir. 2021).

BIPA imposes harsh penalties on employers up to $5000 per violation and permits the recovery of costs and attorneys’ fees, making it attractive to the BIPA plaintiffs’ bar.  BIPA claims against Illinois employers can seek millions of dollars. Illinois employers seek relief from Springfield and seek guidance from the Illinois Supreme Court. 

For more information about BIPA developments, contact Chuhak & Tecson’s Employment attorneys.

Client Alert authored by Thomas G. French (312 855 4342), Associate, and Jeralyn H. Baran (312 855 4613), Principal and leader of Chuhak & Tecson’s Employment Practice.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.