The Illinois Supreme Court will take up the question of whether employers in the state can use Illinois’ workers’ compensation law to win some relief from an ever-heightening blitz of class action lawsuits brought under a state biometric privacy law.
On Jan. 27, the state Supreme Court agreed to hear an appeal brought by the owners of a nursing home on Chicago’s South Side. If the state high court sides with the nursing home, it would overturn a state appeals court's ruling against the nursing home and in favor of workers who claim the nursing home should pay up for the way it made workers scan fingerprints when punching the clock.
In 2017, attorneys with the Chicago-based class action law firm of Edelson P.C. filed suit in Cook County Circuit Court against the corporate entity that operates the Symphony of Bronzeville nursing home for allegedly violating the Illinois Biometric Information Privacy Act (BIPA.) The lawsuit was filed on behalf of named plaintiff Marquita McDonald, an employee of the nursing home. However, the lawsuit seeks to include virtually everyone who worked at the nursing home in recent years.
Symphony also operates dozens of other nursing homes and care facilities in Chicago, the suburbs and elsewhere in Illinois and Indiana.
Like nearly all other class actions brought against employers under the BIPA law, the Symphony Bronzeville case accuses the nursing home operators of improperly requiring workers to scan fingerprints to verify their identities when punching in and out of work shifts. According to the lawsuit, the nursing home allegedly failed to first secure written consent from workers before digitally scanning workers’ fingerprints. They also alleged the nursing home failed to notify workers about how their scanned prints would be collected, stored, used, shared and ultimately destroyed, allegedly as required by the BIPA law.
In response, Symphony’s lawyers asserted the lawsuit should be dismissed, because their employees’ claims are preempted by the Illinois Workers’ Compensation Act.
Symphony centered its arguments on a key provision in the workers’ comp law, which declares the workers’ comp law “preempts any ‘statutory right to recover damages from the employer … for injuries incurred in the course of … employment.”
Symphony argued finding otherwise would mean “an employer would have greater protection from damages claims brought by plaintiffs who have suffered actual psychological (or physical) harm and no protection whatsoever from massive (and potentially) ruinous damages claims brought by plaintiffs who have not suffered an actual injury at all,” Symphony told the courts.
Should the courts back that position, it would give employers, for the first time, an effective defense against BIPA-related class actions.
Originally passed in 2008, the BIPA law was designed ostensibly to address harm to consumers from data breaches or improper releases of their so-called “biometric information,” such as fingerprints, facial geometry, retinal scans or other unique physical identifiers.
However, in the past five years, trial lawyers have seized on the law’s notice and consent provisions to launch myriad class action lawsuits against businesses of all kinds. The law, for instance, has been used to target tech giants, including Facebook and Google. A class action against Facebook over its photo tagging algorithms secured a class action settlement worth more than $600 million.
However, the vast majority of the thousands of lawsuits filed under BIPA have targeted employers, primarily over employers’ use of so-called biometric timeclocks – or devices that require employees to scan a fingerprint or handprint to verify their identity when punching the clock.
In recent weeks, those class actions have also produced a number of settlements against employers of all kinds, including restaurant chains, retailers like Walmart and even charities like the Salvation Army. Those settlements have been worth at least hundreds of thousands, if not millions of dollars.
Other targets of the class actions have included the human resources tech vendors who provide and service the biometric timeclock devices. Recently, ADP and NovaTime have each agreed to settle claims against them, again for millions of dollars.
Plaintiffs lawyers would receive one-third of all the settlement funds.
However, the settlement amounts could pale in comparison to any judgments entered against employers, should such cases go to trial. The BIPA law allows plaintiffs to claim damages of $1,000-$5,000 per violation, which lawyers for both plaintiffs and defendants have said could be calculated as each time an employee begins or ends a work shift, and scans a fingerprint. Multiplied over all of a business’ employees, several times a day, the judgment amounts allowed under the BIPA law could quickly mount into the tens of millions, or even billions of dollars, depending on the size of a company.
To this point, courts in Illinois have thwarted nearly all attempts by employers to defeat such lawsuits.
Courts have similarly, to date, taken a dim view of employers’ attempts to use the workers’ comp law to defeat the lawsuit.
In Cook County, Circuit Judge Raymond Mitchell rejected Symphony Bronzeville’s workers’ comp-related defense.
And other state and federal judges have also sided against employers on the legal question.
When Symphony Bronzeville appealed Judge Mitchell’s decision to the Illinois First District Appellate Court in Chicago, a panel of three justices also sided with the plaintiffs.
They said they did not believe BIPA violations by employers could be legally counted as “injuries,” in the same way physical or psychological injuries can be.
That finding was based, in part, on an Illinois Supreme Court decision in early 2019, which found plaintiffs do not need to demonstrate they have actually been harmed, or “injured,” by a violation of the technical provisions of the BIPA law to launch a class action.
Since BIPA violations are not legally considered “injuries,” the violation of the law is the harm, in and of itself. Therefore, BIPA violations don’t fall under the umbrella of the Illinois workers’ comp law, the appellate justices said.
“… We conclude that the exclusivity provisions of the (Workers’) Compensation Act do not bar a claim for statutory, liquidated damages, where an employer is alleged to have violated an employee’s statutory privacy rights under the (Biometric Information) Privacy Act, as such a claim is simply not compensable under the Compensation Act,” the appellate justices wrote in September 2020.
The Illinois Supreme Court has not yet set any dates for arguments in the Symphony Bronzeville case.
The plaintiffs have been represented by attorneys J. Eli Wade-Scott and Ryan D. Andrews, of the firm of Edelson P.C., of Chicago.
Symphony has been represented by attorneys Joseph Donado and Richard McArdle, of the firm of Seyfarth Shaw LLP, of Chicago.