New BIPA class actions target Walmart, Handi-Foil, Bob's Discount Furniture, others over fingerprint scans

By Jonathan Bilyk | Jan 29, 2019

By Michael Barera, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=42790874

In the wake of an Illinois Supreme Court ruling appearing to green light such actions, a flurry of class action lawsuits have landed in Cook County courts in the last few days, accusing a number of employers, including Walmart, of violating a state privacy law in making employees scan their fingerprints when punching the clock or accessing cash registers.

From Jan. 24-Jan. 28, seven new class actions were filed in Cook County Circuit Court against large employers on behalf of ex-employees, who accused the companies of violating the Illinois Biometric Information Privacy Act (BIPA).

 Defendants named in the lawsuits include retailers Walmart and Bob’s Discount Furniture; meal kit prep and delivery service Home Chef; disposable foil cooking container maker Handi-Foil Corporation; events security service Levy Security Corp.; ADA paratransit company SCR Transportation; and Capstone Restaurant Group, a fast food franchisee, primarily focused on the Hardee’s and Carl’s Jr. brands, that operates more than 300 restaurants in 16 states, according to its website.

The lawsuit against Walmart, brought by named plaintiff Ethan Roach, of Madison County, accuses the world’s largest retailer of illegally requiring employees to scan their handprints when retrieving and returning a cash register drawer.

According to the lawsuit, Roach worked at Walmart’s store in Litchfield in various roles from early 2016-September 2017.

The lawsuit acknowledges the so-called biometric security procedure allows Walmart to better secure its cash registers, and ensure only designated employees are pulling the money-filled drawers.

But the lawsuit says the scans are nonetheless illegal under the Illinois BIPA law because Walmart did not first obtain Roach’s written consent and did not provide workers with “written materials about its collection, retention, destruction, use, or dissemination of his scanned handprint.”  

Roach and the potential class of additional plaintiffs are represented by attorneys with the firm of Werman Salas P.C., of Chicago.

The other lawsuits similarly accused the other defendants of similar violations, but in connection with those employers’ so-called biometric employee punch clocks. Employees using such a system are required to scan their fingerprints when beginning and ending a shift or taking unpaid breaks.

The lawsuits acknowledge the biometric punch clocks reduce fraud by not allowing other workers to punch the clock on behalf of other workers when they are not actually working.

Named plaintiffs in those lawsuits include:

Willie Thirston, who worked as one of about 650 drivers for SCR Transportation from December 2016 to May 2018;

Reginald Vaughan, who worked as a security guard for Levy Security;

Michael Waters, who worked at a Hardee’s restaurant operated by Capstone in Rushville;

Annette Wells and Johnnie Tyler, who worked as line prep workers at Home Chef from the spring to the fall of 2017;

Craig Hickman, who worked as a line employee at a Handi-Foil facility; and

Ricardo Guerrero, of Will County, who worked as an associate at Bob’s Discount Furniture, from April 2017-July 2018.

Four of the new lawsuits were filed by the Werman Salas firm, including the lawsuit against Walmart. McGuire Law, of Chicago, filed two of the lawsuits, against Levy Security and Handi-Foil.

The remaining lawsuit against Home Chef was filed by the Khowaja Law Firm LLC and the Law Office of James X. Bormes, each of Chicago.

The lawsuits arrived just as the Illinois Supreme Court ruled plaintiffs bringing actions under the Illinois BIPA don’t need to demonstrate they were ever actually harmed by the alleged violations of the law.

For instance, workers who accuse their employer of violating the law by not getting their consent to scan their fingerprints to operate the punch clock, don’t need to prove their employers allowed their fingerprint scans to fall into the hands of a data hacker or shared the data with a third party.

In the Jan. 25 ruling, the Illinois Supreme Court said a technical violation of the law without real harm is “not a mere technicality.”

In the unanimous ruling, the justices expressed no reservations about the potential cost facing employers who use the nearly ubiquitous biometric punch clocks and security systems.

“Compliance should not be difficult; whatever expenses a business might incur to meet the law’s requirements are likely to be insignificant compared to the substantial and irreversible harm that could result if biometric identifiers and information are not properly safeguarded; and the public welfare, security, and safety will be advanced,” Chief Justice Lloyd Karmeier wrote in the decision.

And the costs can be significant, as the law allows damages of up to $5,000 per violation, which can be read to include each time an employee scanned a finger or handprint. The law also allows plaintiffs to collect attorney fees, in addition to other damages.

This could easily leave even small employers on the hook for millions of dollars in damages and fees.

Following the decision, lawyers and business advocates warned a flood of new class actions would follow the ruling, as the decision effectively eviscerated the standard defense mounted by businesses faced with such lawsuits.

The new lawsuits come as dozens more are already pending in Cook County Circuit Court, which were filed in the months preceding the state Supreme Court’s decision, while the question of plaintiff standing was still in doubt.

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Organizations in this Story

Bob's Discount Furniture Circuit Court of Cook County Handi-Foil Corporation Home Chef Illinois Supreme Court Law Offices of James X. Bormes Levy Security McGuire Law PC Scr Transportation The Khowaja Law Firm, LLC Walmart. Werman Salas

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