A company that provides the high-tech employee timekeeping devices used by many companies targeted in class action lawsuits under an Illinois privacy law has asked a Chicago federal judge to end a sprawling class action filed against it under the same law.
On April 15, Kronos Incorporated filed a memorandum in federal court, saying the four-month-old class action – ostensibly on behalf of potentially thousands of workers throughout Illinois – violates basic legal principles protecting the company from facing multiple class actions brought by essentially the same group of plaintiffs under the statute known as the Illinois Biometric Information Privacy Act.
“Plaintiffs assert that ‘there are no other class members who have an interest [in] individually controlling the prosecution of [their] individual claims.’ Nothing could be further from the truth,” Kronos argues in its brief. “This lawsuit is duplicative of 14 BIPA class actions already filed against Kronos as a defendant, co-defendant, or respondent in discovery…
“… This lawsuit is Plaintiffs’ attempt to grossly maximize their leverage against Kronos and override the plethora of BIPA class action lawsuits that already involve Kronos, pending before other state and federal judges.”
Melissa Siebert Shook Hardy & Bacon
The brief comes as the latest step in the court fight that began in January, when lawyers with the firm of Stephan Zouras LLP, of Chicago, filed the class action against Kronos in Cook County Circuit Court.
The named plaintiffs attached to the action include Charlene Figueroa and Jermaine Burton.
The lawsuit essentially asserted Lowell, Mass.-based Kronos should be held accountable under the Illinois BIPA law because it supplied employers across Illinois with so-called biometric time clocks, which require employees to verify their identities, typically by scanning fingerprints, when punching in and out of work shifts.
Many employers now rely on such biometric devices to cut down on so-called “punch fraud,” a practice by which employees may clock a co-worker in or out of work shift when that co-worker has otherwise left early or arrived late, without losing pay.
The lawsuit, however, asserts Kronos had an obligation under the BIPA law to provide users with written notifications concerning how their fingerprint scans would be used, stored, distributed and ultimately destroyed when no longer needed, and did not do so before workers at thousands of businesses across Illinois began using their devices to track their work hours.
The lawsuit asks the court to award damages, which under the BIPA law, can be $1,000-$5,000 per violation. And under the law, a single violation could be counted as each time an employee used a Kronos timekeeping device, potentially leaving the company on the hook for untold millions, or even billions of dollars in damages.
The lawsuit is a departure from hundreds of past lawsuits filed previously or pending in Cook County and elsewhere in Illinois, including dozens filed previously by the Stephan Zouras firm. Those lawsuits have typically targeted employers who use biometric time clocks, such as those made and supplied by Kronos, on behalf of a group of workers within a specific company. Kronos has been, at times, named as a co-defendant in a number of those lawsuits.
In this lawsuit, however, Kronos has been directly targeted, without any of the employers it counts as customers or clients.
In response, Kronos moved to send the lawsuit from Cook County court to the U.S. District Court for the Northern District of Illinois, and has asked the court to dismiss the class action.
Kronos said the proposed class action is far too large and unwieldy, as it would seek to combine in one lawsuit the claims of workers from thousands of different employers, each with its own set of employment rules, workplace policies, contracts, collective bargaining agreements, work shifts and even different BIPA-specific releases, notifications and waivers.
Further, Kronos noted it is already a defendant or co-defendant in dozens of BIPA-related class actions, including lawsuits brought by Figueroa against her employer, Tony’s Finer Foods, and Burton against his employer, BWAY.
Kronos noted all of those lawsuits are at various points in their journey through the courts, and employers in those lawsuits have begun staking out different defenses and offering different kinds of evidence and arguments.
Allowing Stephan Zouras to continue with this class action, Kronos argued, would amount to duplicating class actions, and giving the plaintiffs the chance to collect multiple times from the same lawsuits.
“This class action is the epitome of gamesmanship and disregard for fair adjudicatory process,” Kronos wrote in its brief.
“It rehashes the allegations from Plaintiffs’ multiple previously-filed suits in a gambit to create a ‘mega’ class derived from thousands of unidentified employers, intentionally glossing over numerous, employer-specific factual and legal differences so that Plaintiffs can leverage a massive recovery that is completely disproportionate to any possible BIPA liability they could hope to prove.”
Kronos is represented in the action by attorneys Melissa A. Siebert and Ian M. Hansen of the firm of Shook, Hardy & Bacon LLP, of Chicago, and Debra Bernard, of the firm of Perkins Coie LLP, of Chicago.