Employers beware: A recent holding out of Illinois has determined that employees may sue employers who collect and/or disclose employees’ biometric data. On Feb. 3, 2022, the Illinois Supreme Court issued a significant decision in McDonald v. Symphony Bronzeville Park, LLC, et al., impacting current and  future claims against employers involving the Illinois Biometric Information Privacy Act (BIPA). The McDonald decision effectively held that the exclusive remedy provisions of the Illinois Workers’ Compensation Act (IWCA) do not apply to BIPA claims, and thus employers cannot use the IWCA to preempt these BIPA claims.

BIPA case detail

Fingerprint biometric data technology

In McDonald, the plaintiff alleged that her former employer, Symphony Bronzeville Park, LLC (Bronzeville), had violated BIPA by requiring employees to clock-in using a fingerprint scanner.  McDonald and the putative class alleged that Bronzeville utilized this fingerprint-scanning system without obtaining their written consent or disclosing the purpose or length of time for which their biometric information was being stored. Plaintiff sued in circuit court, and Bronzeville sought to dismiss the suit, stating that the IWCA provided the exclusive remedy for an employee’s claims against their employer and that the case should therefore proceed before the Illinois Workers’ Compensation Commission.

The Illinois Supreme Court acknowledged that the IWCA typically provides the exclusive remedy for employees’ claims against their employers. It then held that McDonald and her class could nonetheless pursue their BIPA claims “in the circuit court, rather than through a claim before the Workers’ Compensation Commission, because McDonald’s and the putative class’s alleged injury is not one that ‘categorically fits within the purview of the [Compensation] Act.’”

In reaching its decision, the Supreme Court noted that the Illinois legislature enacted the IWCA to function as a remedial statute, which should be “liberally construed to effectuate its main purpose — to provide financial protection for injured workers until they can return to the workforce.” As such, most workplace injuries would fall under the exclusive remedy provisions of Sections 5(a) and 11 of the IWCA. Nevertheless, the Supreme Court noted that the plain language of BIPA indicated that the legislature did not intend for BIPA to be preempted by the IWCA, in part because the “written release” required to collect data under BIPA included “a release executed by an employee as a condition of employment.”

Here, the employees’ injuries did not affect their capacity to perform employment-related duties — “the type of injury for which the workers’ compensation scheme was created.” Instead, the plaintiff and the class sought compensation for “personal and societal injuries” caused by violating BIPA, which differed in nature and scope from the physical and psychological work injuries compensable under the IWCA.  The alleged injuries involved the violation of McDonald’s and the class’s rights to maintain their biometric privacy, injuries which were not compensable under the IWCA.

Potential implications for employers

The McDonald decision serves as a warning to all employers who collect, store or otherwise obtain employee data subject to BIPA. Using and storing this information without the prior written consent of employees can open employers up to further liability outside of the IWCA.

Potential impact outside of Illinois

Companies with a presence in Illinois utilizing biometric technology may be directly impacted by BIPA.  In addition, companies located outside of Illinois have been sued in Illinois courts alleging violations of BIPA. Although BIPA generally does not apply to conduct outside of Illinois, courts have been asked to determine whether the alleged violations occurred “primarily and substantially within Illinois.” Similarly, an employer may have employees who touch Illinois in other ways and are therefore covered by the statute.

There is similar pending and proposed legislation in other states and proposed national legislation. As the use of biometric technology continues to increase and more legislation follows, employers will need to keep up with any new laws and regulations.