A Chicago judge dismissed a lawsuit against Southwest Airlines, which alleged the carrier breached employees' biometric privacy at Midway International Airport, saying plaintiffs' claims should go before a federal adjustment board, not a federal judge.
Judge Steven Seeger issued the ruling May 12 in U.S. District Court for the Northern District of Illinois. The ruling tossed a putative class action brought in 2019 against Southwest by Darrell Crooms, John Lopez, Latrice Saxon and Stephanie Hill. Southwest is headquartered in Dallas.
The plaintiffs were ramp supervisors at Midway, in charge of agents who load bags and cargo, and direct aircraft in and out of gates, according to court documents. Crooms was hired by Southwest as a ramp supervisor, while the three others started as ramp agents before receiving promotions. They alleged Southwest scanned their fingerprints when they were hired for identification and security purposes. However, Southwest allegedly violated the Illinois Biometric Information Privacy Act (BIPA), by failing to obtain employees' informed written consent and not having guidelines for retention and deletion of biometric data, the suit said.
On June 26, Southwest filed a motion to dismiss the suit, relying on a June 13 ruling by the U.S. Court of Appeals for the Seventh Circuit that addressed a biometric suit by another group of Southwest employees. The Seventh Circuit said the Railway Labor Act, which governs labor-management relations in the railroad and airline industries, required this other group of plaintiffs to take their claims to an "adjustment board." Such boards interpret and apply collective bargaining agreements for railroads and airlines.
Judge Seeger agreed with Southwest's invocation of the Railway Labor Act.
Seeger also found the three employees, who were ramp agents before becoming supervisors, were members of the Transportation Workers Union of America. The union consented on behalf of employees to have employees' prints scanned at time of hire. Southwest argued this consent remains in place when unionized employees are promoted to management.
"The consent stuck with them," Seeger said, as he summarized the airline's argument. However, the judge did not weigh in on the merits of the parties' positions, leaving that up to the adjustment board.
"Maybe Plaintiffs have an argument that the collective bargaining agreement did not authorize the Union to give once-and-for-all consents," Seeger wrote. "And maybe Plaintiffs can construct an argument that BIPA requires re-notice and re-consent, even if an employee changes roles within the company. But the punchline is the same — the proper forum to hear that argument is an adjustment board, not this Court."
Seeger distinguished between Lopez, Saxon and Hill, who belonged to the union at one time, and Crooms, who did not. The onetime union membership of Lopez, Saxon and Hill meant their issues with Southwest must be handled by an adjustment board, in accordance with the Railway Labor Act.
"Any claims that the four Plaintiffs may have under BIPA must go to an arbitrator," the judge wrote. "They would need to go to arbitrator, that is, if there were no preemption under the Railway Labor Act. Three of the four Plaintiffs (Lopez, Saxon, and Hill) must press their claims before an adjustment board in light of the Railway Labor Act. The other Plaintiff (Crooms) must arbitrate his claims before an AAA [American Arbitration Association] arbitrator. If it were not for the Railway Labor Act, the other three Plaintiffs would be headed to arbitration, too."
Crooms who was never in the union, agreed on his own in his Southwest contract to arbitrate with the AAA any disputes, the judge noted.
Plaintiffs are represented by the Chicago firm of Stephen Zouras LLP.
Southwest is defended by Shook, Hardy & Bacon, of Chicago.