Lawyers for a group of Southwest Airlines employees have asked a federal appeals court to find a Chicago federal judge was wrong to toss their class action accusing the airline of violating their rights under a state’s biometrics privacy law, as the plaintiffs said their union contract doesn’t negate the airline’s alleged liability under the state law.
On March 5, attorneys Steven A. Hart and John S. Marrese, of the firm of Hart McLaughlin & Eldridge LLC, of Chicago, filed a brief with the U.S. Seventh Circuit Court of Appeals, asking the appellate judges to let them renew their class action against the company under the Illinois Biometric Information Privacy Act.
“… At bottom, the Seventh Circuit must decide here what rights baggage handlers and ramp agents relinquish when they take a union job,” Hart wrote in the brief. “On this record, there is no sincere argument that they relinquished state law privacy rights vis-à-vis a collective bargaining agreement that does not even mention such rights.
Steven Hart
| Hart McLaughlin Eldridge
“A contrary finding is a slippery slope, enabling CBA ‘management rights’ clauses, untethered from vested state rights, to swallow those state rights.”
The brief comes more than six months since U.S. District Judge Marvin Aspen ruled federal law governing airline labor relations outranked the state privacy law, and the workers’ legal action should be understood to be an argument over worker relations governed by the workers’ collective bargaining agreement.
The workers had first filed suit in Cook County Circuit Court in November 2017, asserting the airline violated its workers’ rights when it required workers to punch in and out of work shifts by scanning their fingerprints in a so-called biometric time clock.
According to court documents, the punch clocks were provided by time clock vendor Kronos, and have been used by the airline since 2005.
Industry reports indicate such biometric devices help employers reduce so-called punch fraud, by verifying the identity of the person clocking in or out, reducing the chances an employee could punch a coworker in or out of a work shift, allowing them to collect pay when they don’t actually report for work or have left work early.
Similar filings have recognized the benefits of such biometric devices for employers.
But the workers asserted Southwest failed to properly notify employees of their rights under the Illinois BIPA law and did not give employees the opportunity to provide written authorization to scan their fingerprints.
The Illinois General Assembly enacted the BIPA law in 2008.
Under the BIPA law, workers could demand damages of $1,000 for each unintentional violation or $5,000 for each willful violation of the law. A violation could be determined to include each time a worker punched in or out of a work shift using the biometric punch clocks.
Southwest took the case to federal court in early 2018, and argued the employees’ claims are subject to mandatory arbitration or union negotiations under the CBA between the airline and the workers’ union, under the federal Railway Labor Act, which applies to airlines.
Southwest asserted the workers’ state-law claims were minor disputes requiring an interpretation of the CBA sections covering employment terms and the use of the biometric time clocks was subject to negotiation with the union.
In his decision siding with Southwest, Judge Aspen said the employees’ “BIPA claim cannot be resolved without interpreting the wage provisions of the CBAs and the relevant bargaining history.
He said Southwest’s “decision to implement the biometric timekeeping system requires an interpretation as to whether the decision falls within the scope of (Southwest’s) right to ‘manage and direct the work force.’”
The plaintiffs appealed that decision in November, and filed their initial brief arguing against Judge Aspen’s reasoning.
They noted Southwest notified the union of its use of biometric punch clocks, but only when the airline began using them, nearly three years before the BIPA law was enacted.
That does not suffice to excuse the airline’s lack of written notice to employees after the law was passed, the plaintiffs argued, as they asserted the law doesn’t allow for the union to serve as the workers’ “legally authorized representative” for the purposes of BIPA notification.
“… Southwest provided no evidence whatsoever of BIPA-compliant notice to, or BIPA-compliant consent from, anyone – be it the Union or otherwise,” the plaintiffs argued.
They argued the Illinois Supreme Court recently has held any so-called injury from violation of the BIPA law is an individual, not collective right.
“… The Illinois Supreme Court has left no doubt regarding the importance of the individual privacy rights at stake,” the plaintiffs argued. “It would be inconsistent with the Illinois Supreme Court’s interpretation of the statute to find that an employee may relinquish vested statutory privacy rights merely by joining a union.”
Southwest has been represented in the action by attorney Melissa Anne Siebert and others with the firm of Baker & Hostetler LLP.