Two federal judges have separately dismissed two class actions brought against two different suburban food distributors under Illinois’ biometric privacy law, with each judge declaring they believed those companies’ use of fingerprint scanning punch clocks to log their employees’ work hours was a topic for collective bargaining in their unionized workplaces, and didn’t belong in court as a class action.
On Nov. 30, U.S. District Judge Robert W. Gettleman dismissed a lawsuit against True World Foods, a distributor of fresh and frozen seafood, based in New Jersey.
Also that same day, U.S. District Judge Franklin U. Valderrama dismissed a similar lawsuit against international food products and flavorings maker Kerry Inc.
Melissa Siebert
| Shook Hardy & Bacon
In 2017, attorney Alejandro Caffarelli, of the firm of Caffarelli & Associates Ltd., of Chicago, filed suit in Cook County Circuit Court against Kerry, on behalf of a group of Kerry employees at the company’s plant in suburban Morton Grove.
In March 2020, attorney Catherine T. Mitchell and others with the firm of Stephan Zouras LLP, of Chicago, filed suit, also in Cook County court, against True World, on behalf of hourly truck drivers, employed at the company’s facility in Elk Grove.
Both lawsuits asserted the companies violated the employees’ rights under the Illinois Biometric Information Privacy Act, in the way they required the workers at the plants to scan their fingerprints to verify their identities when punching in and out of work shifts.
The lawsuits specifically accused the companies of allegedly failing to secure consent from the workers before scanning their fingerprints, and for failing to provide notice of the scans, and of the companies’ policies regarding how the scanned fingerprints would be stored, used, shared and ultimately destroyed, allegedly as required by the BIPA law.
Such class actions have become commonplace in courts in Chicago and elsewhere, thanks in part to the Illinois Supreme Court’s determination that, under Illinois law, workers and others don’t need to show how they were actually harmed to sue companies for allegedly violating technical provisions of the BIPA law.
The class actions have also begun to produce relatively large payouts. Plaintiffs, for instance, reached a $650 million deal to settle a class action accusing Facebook of violating BIPA when it created templates of users’ faces from photos uploaded onto the platform.
Most of the lawsuits, however, have targeted employers of all sizes and types in Illinois, accusing them of violating BIPA’s provisions in the way they require employees to scan fingerprints, handprints or other biometric identifiers when punching time clocks at the beginning and end of work shifts, or when accessing secure areas, such as truck yards or drug supply closets.
Earlier this year, for instance, restaurant chains Corner Bakery and Nando’s Peri-Peri agreed to settle BIPA-related class actions against them for $3.2 million and $1.78 million, respectively. Those lawsuits accused those employers over worker fingerprint scans for timekeeping purposes.
In some cases, however, judges have begun to rule that employers can defeat BIPA class actions, if the workers who are suing them are part of a union bargaining unit.
Once employers get a case moved into federal court, employers who are being sued quickly point to a decision rendered in 2019 by the U.S. Seventh Circuit Court of Appeals. In the case known as Miller v Southwest Airlines, union members brought a class action against the airline for requiring them to scan their fingerprints to track work hours, claiming the airline – like so many other employers – allegedly violated the Illinois BIPA law.
However, the Seventh Circuit ruled federal labor laws make the topic of how employers use and deploy technology like fingerprint-scanning punch clocks a matter for negotiation and arbitration under the employees’ union collective bargaining agreements.
That means, the court said, the class actions must be dismissed.
In the cases against Kerry Inc. and True World Foods, judges Gettleman and Valderrama similarly determined the workers’ status as members of a union meant their BIPA claims against their employers should be doomed.
While the Miller decision applied the federal Railway Labor Act, Judge Gettleman said he believed the Miller decision also can be applied to the Labor Management Relations Act.
“Contrary to plaintiffs’ arguments, this case presents almost identical facts to Miller…,” Gettleman wrote. “Plaintifs are unionized workers who used their fingerprints and/or handprints to clock in and out of work. Plaintiffs were subject to a CBA which included management rights provision. The plaintiffs’ union was their ‘legally authorized representative’ for the purpose of determining whether plaintiffs had received the disclosures and given the consent required under BIPA.
“Indeed, plaintiffs’ BIPA claims ‘deal with a mandatory subject of collective bargaining: the mechanism through which workers clock in and out.’”
Judge Valderrama similarly determined the Miller decision should require all BIPA claims leveled by union members to be subject to the bargaining requirements spelled out in federal labor laws.
“In sum, this Court, unlike the (Illinois) state courts, is bound to follow Miller, which requires the Court to find that Plaintiffs’ BIPA claims are preempted” by the LMRA, Valderrama wrote.
True World Foods has been represented in their case by attorneys Jody Kahn Mason and Katherine H. Oblak, of the firm of Jackson Lewis P.C., of Chicago.
Kerry has been represented by attorneys Melissa A. Siebert, Erin Bolan Hines and Jonathon M. Studer, of the firm of Shook, Hardy & Bacon L.L.P., of Chicago, and Suzanne Marie Alton de Eraso, of the firm of Benesch Friedlander Coplan & Aronoff, of Chicago.