Sports entertainment company TopGolf has sliced on its attempt to drive off a class action lawsuit brought by some of its workers under an Illinois biometrics privacy law.
On Sept. 3, U.S. District Judge Edmond Chang, in the Northern District of Illinois in Chicago, rejected TopGolf’s bid to dismiss the lawsuit, accusing it of failing to properly notify and get authorization from its employees before requiring them to scan their fingerprints when punching in and out of work shifts.
The company, which operates golf driving range-based entertainment complexes in Schaumburg and Naperville, and throughout various other U.S. locations, has become the latest employer to fail to shake such class action lawsuits.
Anne Larson
| Ogletree Deakins Nash Smoak & Stewart
Attorneys with the firm of Werman Salas, of Chicago, and the Fish Law Firm, of Naperville, had sued TopGolf in 2019. The class action lawsuit, which could be on behalf of more than 500 TopGolf workers in Illinois, accuses TopGolf of violating the Illinois Biometric Information Privacy Act (BIPA).
TopGolf has for years required all of its workers to scan their fingerprints when punching the clock, to establish their identity and to prevent so-called “punch fraud,” under which one worker might punch the clock on behalf of a coworker to allow them to leave early or arrive late, and still get paid for their full shift.
The lawsuit, however, asserts TopGolf failed to first obtain authorization from the workers before collecting the fingerprint scans and potentially distributing them to a third-party timeclock operator vendor. Further, the complaint alleges TopGolf did not notify the workers, or post in a public place a schedule, indicating how TopGolf would handle the fingerprint scans, including sharing it and ultimately destroying the workers’ biometric information.
Under the law, plaintiffs don’t need to prove they were actually harmed by the technical violations of the law. They need only demonstrate their employer failed to abide by the requirements of the law to potentially force an employer to pay out millions of dollars.
The law could force employers in violation to pay damages of $1,000-$5,000 per violation, which could be defined as each time an employee scanned a fingerprint.
In this instance, TopGolf estimated it could be forced to pay at least more than $5 million in damages, and perhaps much more, should the case go to trial.
The lawsuit was first filed in Cook County Circuit Court in Chicago. TopGolf, however, sought to take the case to federal court, where it then sought to have the case dismissed.
TopGolf argued the damages claims should actually fall under the Illinois Workers’ Compensation law, as the alleged injuries under the law occurred in the course of their employment. TopGolf also argued the lawsuit should be barred by certain time limits set by Illinois courts in other cases.
Judge Chang, however, rejected both arguments.
He noted all Illinois state courts in which the Workers’ Compensation Act defense has been raised by employers sued under the Illinois BIPA law, have rejected that line of reasoning.
Allowing such reasoning to stand, the judge said, would close off any employees’ attempts to sue their employers for violating BIPA. That would “render BIPA useless in the employment context, even though BIPA is clearly meant to apply in that context,” the judge said.
Further, he said, the state’s Workers’ Compensation law is meant to apply in cases of accidents which cause injury to workers in the workplace.
“All in all, it is hard to read any of those allegations with an ‘accidental’ gloss,” the judge said. “The Plaintiffs, for instance, do not ever say that Topgolf was negligent in disclosing the biometric data to the vendor, or that the failure to obtain consent was some sort of accident. Rather, read in context, the Plaintiffs allege that Topgolf intentionally collected employee fingerprints for purposes of maintaining a biometric timekeeping system.
“No accident there.”
The judge also rejected the attempts to argue that 1- or 2-year statutes of limitations should apply in BIPA cases.
The judge said BIPA claims are different from claims involving “slander, libel or … publication of matter” violating a right to privacy, in general, which carry a one-year limit.
And Judge Chang said the two-year limit on personal injury claims also aren’t applicable to BIPA claims, either, because there is a difference between “an injury to the person” and a claim based on a violation of “purely statutory rights,” as expressed in BIPA class actions.
The judge said, rather, Illinois’ general five-year statutory time limits should apply to BIPA claims.
The judge also granted part of the plaintiffs’ request to send a portion of the case back to Cook County’s courts, regarded as some of the most plaintiff-friendly courts in the country.
Judge Chang said any allegations based solely on a purely technical violation of the law – in this case, violations of the requirement to post a public schedule concerning how TopGolf would maintain the worker fingerprint data – can return to Cook County court.
However, any claims related to the obligations TopGolf owed to individual employees - in obtaining authorization and notifying them of the company’s policies and procedures concerning the storage and sharing of their data – can remain in federal court, the judge said.
Attorneys from a number of firms, including Werman Salas and the Fish firm, have lodged class actions under BIPA against hundreds of employers operating in Illinois in recent years. Most of the lawsuits center on the employers’ use of biometric time clocks.
The lawsuits have particularly proliferated since the Illinois Supreme Court’s decision in 2019, in the case known as Rosenbach v Six Flags. In that decision, the state high court determined plaintiffs don’t need to prove actual harm, and the court said the potentially crippling damages employers and other businesses may be forced to pay are simply a cost of doing business and would be “insignificant” compared to the duty to “safeguard” scanned biometric information.
Many of the lawsuits have settled, as employers have struggled to find defenses sufficient to blunt the lawsuits’ impact.
In this case, TopGolf is represented by attorney Anne E. Larson, and others with the firm of Ogletree, Deakins, Nash, Smoak & Stewart, of Chicago.