Proposed change to IL biometrics law could offer relief to employers from lawsuit 'abuse' of privacy protections

By Jonathan Bilyk | Apr 3, 2019

Illinois State Senate chambers   Daniel Schwen [CC BY-SA 4.0 (]

More employers are being added nearly every day to the roster of those facing potentially ruinous class action lawsuits under a state privacy law for failing to get employees’ approval before requiring them to scan their fingerprints when punching in and out of work each day.

However, some Illinois lawmakers have asked their colleagues to sign off on a measure to provide some relief to employers in the state, to put a stop to what critics say is a misuse of the law.

“The sense is, for some lawmakers, that the statute is being abused, and it’s more about plaintiffs’ class action lawyers than about privacy rights of individuals,” said Gerald Maatman, a partner and attorney with the firm of Seyfarth Shaw, in Chicago, who specializes in employment cases.

The law, known as the Biometric Information Privacy Act, has been on the books since 2008. When it was enacted, supporters indicated the law was designed to protect consumers whose physical identifying characteristics, like fingerprints, facial geometry and retinal scans, from having their information disclosed by tech companies and other third parties, who may scan and store that information.

Gerald Maatman   Seyfarth Shaw

However, in more recent years, plaintiffs’ lawyers have tested the limits of the law, filing class actions against tech and social media giants, like Facebook and Google, but also against employers of all sizes.

The class actions largely have centered on the BIPA law’s provisions requiring companies to secure expressed written authorization from customers and others before scanning and storing their biometric information.

The lawsuits against Facebook and others in social media have largely centered on those companies’ practice of scanning users’ facial geometry to help in identifying people when photos of them are uploaded.

Threats of legal actions under those provisions are why a number of makers of high-tech devices, ranging from robotic dogs to security cameras equipped with facial recognition software, have either disabled certain features or stopped selling their products in Illinois altogether.

Likewise, class action lawyers have targeted other businesses who require customers to scan a fingerprint to verify their identity when using services. Suburban tanning salons have been hit with such actions.

And earlier this year, the Illinois Supreme Court ruled a Lake County woman can pursue her lawsuit against theme park operator Six Flags for requiring her teenage son to scan his fingerprint when using his season pass at Six Flags Great America in north suburban Gurnee.

In that ruling, the state high court found plaintiffs don’t have to prove they actually suffered any harm, such as identity theft, or even the risk of identity theft, from having their fingerprints or other biometric information scanned. Rather, they merely need to establish the scan occurred, and they didn’t sign off on it.

However, a far larger share of the class actions have targeted employers of all sizes, throughout the state, which require employees to use so-called biometric time clocks. Typically, such time clocks are installed to help employers reduce “punch fraud,” or the practice under which co-workers punch the clock on behalf of others, allowing them to either show up late or leave early without losing pay or suffering discipline.

And in the wake of the Illinois Supreme Court decision, those lawsuits have multiplied, leaving employers at real risk of crippling judgments.

Under the law, those bringing suit have the right to ask for damages of $1,000-$5,000 per violation. But under BIPA, an individual violation could be determined to include each time a fingerprint or other biometric identifier was scanned.

Thus, even a small employer could face a judgment worth many millions of dollars in damages and fees.

In Cook County Circuit Court alone, dozens of such BIPA lawsuits are pending at any given point. And more continue to pour in. For instance, from Friday, March 29, to Monday, April 1, alone, seven new lawsuits were filed against employers throughout the Chicago area, including Roosevelt University, CSX Intermodal and others.

With more lawsuits continuing to pile up, some state lawmakers are seeking to remove the ability of employees to directly sue their employers for making them use biometric time clocks, and others who may violate the law’s technical requirements for notification and authorization.

In February, state Sen. Jason Barickman, R-Bloomington, filed SB2134 in the Illinois State Senate.

He has since been joined on the measure by state Sen. Bill Cunningham, D-Springfield.

The measure would instead move any “violation that results from the collection of biometric information by an employer for employment, human resources, fraud prevention or security purposes” would be subject to oversight by the Illinois Department of Labor.

Employees who believe their BIPA rights were violated would then need to file a complaint with the Labor Department, within a year of the violation.

Enforcement of the law would generally fall to the Illinois Attorney General’s Office, potentially ending the rain of BIPA class action lawsuits.

Maatman said he doesn’t necessarily expect the revision to the law will pass quickly, if at all, in its current form.

He said it also would likely do little to help the array of businesses now facing legal action in Cook County courts and other forums in the state under BIPA, as Illinois legal precedent would not allow the changes to be applied retroactively.

But he said the revisions are still needed – and soon.

“Privacy is an important workplace right, and employers know and respect this,” Maatman said. “But clearer legal guideposts are needed in terms of vague issues under the law, as well as the threshold legal standing issue of when and in what circumstances a person is actually damaged by a breach as opposed to a technical violation of the law where no one suffers any harm.”

In the meantime, Maatman said he expects yet more BIPA-related class actions to accumulate in the Cook County dockets, and elsewhere.

“There is already a surge,” he said. “BIPA claims are the most common class action being filed right now in the Circuit Court of Cook County.”

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Circuit Court of Cook County Illinois Attorney General Illinois Department of Labor Illinois General Assembly Illinois State Senate Illinois State Senator Jason Barickman Illinois Supreme Court Seyfarth Shaw, LLP

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