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Monday, February 24, 2020

Judge: Third-party tech vendors may not be on the hook for employee fingerprint scans under IL biometrics law

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By Jonathan Bilyk | Sep 10, 2019

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A Cook County judge has ruled third party vendors who supply fingerprint-scanning time clocks to employers may be able to sidestep attempts to sue them under a state biometric privacy law that has been used to target Illinois employers of all sizes and types with potentially crippling class action lawsuits.

Cook County Associate Judge David B. Atkins dismissed a lawsuit filed against human resources vendor ADP Inc. under the Illinois Biometric Information Privacy Act.

The potential class action lawsuit had first been filed in 2017 by named plaintiff Felipe Bernal against his employer, Rockit Ranch Productions, a Chicago-based restaurant and nightclub development and management company.

The lawsuit largely mirrored allegations and reasoning common in a host of other similar class actions filed against Illinois employers. The complaint accused Rockit Ranch of violating the Illinois BIPA law by requiring its employees to scan their so-called “biometric identifiers” to verify their identity when punching in and out of work shifts, without first securing written authorization from the employees to scan their physical identifiers and without providing notices allegedly required by the law concerning how the scanned identifying information would be stored, used, shared and ultimately destroyed.

The lawsuit also added ADP as an additional defendant, as the third-party vendor that supplied the biometric time clocks used by Rockit Ranch and its workers.

The lawsuit sought to pin a judgment worth $1,000-$5,000 per violation on the defendants, which could amount to millions of dollars in damages, as the law could be interpreted to define a “violation” as each time an employee punched the clock.

However, after months of litigation, the plaintiffs dropped Rockit Ranch as a defendant, and instead focused their class action entirely on ADP.

ADP responded by asking the judge to dismiss the action, arguing the plaintiffs could not prove the BIPA law even applied to them.

Judge Atkins ultimately agreed.

He ruled the law’s notification requirements could not possibly be read to apply to third-party equipment and technology vendors the same way they could be applied to the actual employers.

“All of Plaintiff’s claims stem from Rockit’s requirement that employees participate in biometric scanning technology,” Judge Atkins wrote. “That Rockit obtained the technology from Defendant (ADP) does not remove Plaintiff’s case from existing within the context of his employment by Rockit.

“As Defendant (ADP) notes, to read BIPA as requiring that a third party provider of the biometric timeclock technology, without any direct relationship with its customers’ employees, obtain written releases from said employees would be unquestionably not only inconvenient but arguably absurd,” Judge Atkins wrote.

The judge also determined the plaintiffs couldn’t sue ADP under BIPA’s prohibitions against companies “selling, leasing, trading, or otherwise profiting from an individual’s biometric information.”

The judge said the plaintiffs had not established ADP ever “sold, leased, traded, or otherwise profited from anyone’s biometric information,” as the company only provided the technology used employers to track their workers’ hours.

And Judge Atkins further rejected the plaintiffs’ contentions ADP violated the BIPA law by improperly “disseminating” and sharing the biometric information obtained from the scans using the company’s wage-and-hour tracking tech.

“Suggesting that the technology Defendant (ADP) created allows for the dissemination of biometric information is not an allegation of the Defendant’s disseminating biometric information,” the judge wrote.

The judge dismissed the allegations in the lawsuit without prejudice, meaning Bernal and his lawyers can try again by filing an amended complaint to address the shortcomings identified by the judge in his ruling.

The judge gave Bernal until Sept. 20 to file an amended complaint.

Bernal has been represented by attorneys from the firm of McGuire Law PC, of Chicago.

ADP has been represented by the firm of Jenner & Block, of Chicago.

The ruling has already garnered attention elsewhere.

In Chicago federal court, timetracking technology vendor Kronos cited the ruling in a brief filed in support of that company’s motion to dismiss a similar class action filed against it under the Illinois BIPA law.

Kronos asserted the ruling should lend credence to its contention it, also, like ADP, cannot be sued under the BIPA law, as a similar third-party technology and equipment vendor.

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Organizations in this Story

McGuire Law PCRockit Ranch ProductionsCircuit Court of Cook CountyKronos, IncJenner & BlockADP

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