By Anthony92931 (Own work) [CC BY-SA 3.0 (], via Wikimedia Commons

Hooters has asked a Cook County judge to toss a lawsuit alleging it violated a state privacy law by requiring employees to scan their fingerprints to use when punching in and out of work shifts, though the restaurant chain now faces a similar accusation from another lawsuit.

In a motion filed Jan. 4, Hooters Inc. and Hooters of Wells Street Inc., asked Cook County Circuit Judge Kathleen M. Pantle to dismiss the class action complaint Anadelia Hernandez filed in October. Hernandez, a server at the Hooters on North Wells in Chicago since 2014, said the restaurant group forced employees to scan their fingerprints into a company database to log their work hours, but did so without first securing written authorization from employees and without explaining how the scans would be stored and ultimately destroyed. She alleged this violated the state’s Biometric Information Privacy Act.

Hooters argued the Illinois BIPA protects it from being sued unless someone alleges a violation of the act caused actual harm. Hooters cited a Dec. 21 opinion in which the Illinois Second District Appellate Court effectively said a woman lacked standing to sue theme park operator Six Flags over its use of admission turnstile fingerprint scanners at Six Flags Great America in Gurnee, because she failed to explain how failing to secure express written authorization or provide a document explaining how the company planned to store and ultimately destroy the fingerprint scans, inflicted concrete harm under the law.

In the Hooters case, Hernandez alleged “only speculative fears that her information might one day be stolen,” Hooters contended. Further, Hooters argued it cannot be construed to have intruded on employees’ privacy because Hernandez and putative class members voluntarily supplied fingerprints.

As the court considers Hooters’ motion, another suit arrived in Cook County court against the restaurant chain. On Jan. 23, Tomas Flemming-Jones filed a complaint against Hooters Management Corporation and HTRS Services Corporation. As with Hernandez’s suit, Flemming-Jones - who was a Hooters cook from August to November 2017 - alleged Hooters “disregards their employees’ statutorily protected privacy rights and unlawfully collects, stores and uses their biometric data in violation of BIPA.”

Flemming-Jones seeks statutory damages of $5,000 for each willful BIPA violation and $1,000 for each negligent violation. Hernandez asked the court to award liquidated damages, but Hooters said those are not available in the absence of actual damages, and only when a plaintiff has suffered actual damages, but the precise amount is difficult to ascertain.

Hooters further said Hernandez’ lack of standing - in that she failed to allege harm - undercuts her request for damages or injunctive relief. Flemming-Jones also seeks injunctive relief, wanting the court to force Hooters to comply with all BIPA requirements. He, like Hernandez, included in his complaint information about BIPA’s 2008 enactment in response to the 2007 bankruptcy of Pay By Touch, a company that offered retailers and consumers the opportunity to make purchases using a fingerprint scan. The company’s failure prompted state lawmakers to enact protections to attempt to prevent such databases of fingerprints and other biometric identifiers from being sold or otherwise distributed when such companies either fail or simply wish to no longer maintain those databases.

With respect to the Hernandez complaint, Hooters Inc, also argued it should be dismissed with prejudice because it did not directly employ Hernandez or anyone who would qualify for her proposed class. The company said it “does not have any involvement with the timekeeping practices or the Aloha point of sale system” Hernandez referenced in her suit. It said the Aloha system “is located in the restaurant owned and run by Hooters of Wells Street,” which is “responsible for its own timekeeping procedures.”

Hernandez’ legal team includes attorneys with The Khowaja Law Firm LLC and the Law Office of James X. Bormes P.C., each of Chicago.

Representing Flemming-Jones, and seeking to serve as putative class counsel in Flemming-Jones’ complaint, is the Chicago firm of Stephan Zouras LLP.

Hooters Inc. and Hooters of Wells Street are represented by Baker & Hostetler LLP, of Chicago.

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Cook County Circuit Court Illinois Second District Appellate Court Law Office of James X. Bormes, P.C.

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