Vehicle accessory maker WeatherTech is suing the vendors that supplied its worker timeclocks, as the manufacturer seeks to rid itself of liability – and any potential court-ordered payouts – under a class action lawsuit brought by Weathertech workers who claim the manufacturer violated an Illinois biometrics privacy law by making workers scan their fingerprints when punching the clock.
Late last year, Weathertech’s parent company, MacNeil Automotive Products, filed suit in Cook County Circuit Court against two human resources services vendors ADP LLC and Paychex Inc.
MacNeil, which does business as Weathertech, is based in southwest suburban Bolingbrook, where it produces a popular line of all-weather car floormats, trunk liners and other heavy duty rubber car and truck accessories.
The lawsuit, styled as a third party complaint, asserts ADP and Paychex operated the timeclocks, and didn't educate and warn Weathertech of its potential liability under Illinois law.
Weathertech and ADP were sued in May 2019 under the Illinois Biometrics Information Privacy Act. The class action lawsuit was brought on behalf of the action’s named plaintiff, Weathertech employee Wardell Brown, and all other Weathertech employees in Illinois who tracked their work hours using so-called biometric timeclock systems.
The lawsuit was filed by attorneys Ryan F. Stephan, James B. Zouras, Andrew C. Ficzko and Haley R. Jenkins, of the firm of Stephan Zouras LLP, of Chicago.
The biometric systems require workers to verify their identities by scanning their fingerprints when punching the clock when beginning and ending work shifts. Such identity verification technology has been widely deployed at job sites throughout the country to combat so-called “punch fraud,” in which workers might punch the clock on behalf of a co-worker who has either arrived late or left early, so as to make it appear the co-worker was on the job, when they were not.
The class action, like thousands of other similar lawsuits brought against Illinois employers in recent years under the BIPA law, accused Weathertech of allegedly failing to abide by the BIPA law’s technical notice and consent requirements when deploying the technology. Specifically, such lawsuits typically accuse employers of failing to secure written authorization from their employees before requiring the fingerprint scans. They also accuse employers of failing to provide written notice to employees explaining how the fingerprints would be stored, used, shared and ultimately destroyed.
Under the BIPA law, employers could face hefty court-ordered payouts. The BIPA law allows for damages of $1,000-$5,000 per violation. And under the law, violations could be defined as each time an employee scans their fingerprints. Multiplied over an entire workforce, the price tag could run into the millions or even billions of dollars, depending on the size of the company.
Further, courts in Illinois have routinely shut down efforts to use legal defenses or Illinois other labor laws to sidestep the BIPA claims.
For instance, Weathertech, like other employers, attempted to argue Illinois’ workers’ compensation law should foreclose the ability of its workers to bring a BIPA-related claim.
However, a state appeals court, in a different BIPA case, brought against a nursing home on Chicago’s South Side, ruled last year that there was no conflict. Under an Illinois Supreme Court ruling, plaintiffs targeting employers with BIPA class actions don’t need to demonstrate they were actually harmed – or “injured” – to press their big-dollar claims. They need only allege their employers failed to follow the BIPA law’s technical provisions.
Thus, the appeals court reasoned, since there is no “injury” claimed in BIPA class actions, there is no conflict with the workers’ comp law, which requires employees to prove they were injured.
Following that appellate ruling, Cook County Judge Sanjay Tailor in September denied Weathertech’s similar attempt to use the workers’ comp law to win dismissal of the BIPA class action against them.
Faced with the prospects of potentially “crippling” financial losses, a growing number of employers opted in 2020 and into 2021 to cut their losses and settle BIPA class actions.
The value of those employer settlements have ranged from hundreds of thousands of dollars to millions, with the lawyers who filed the lawsuits reaping one-third of all the proceeds.
Members of the employee class have typically received a few hundred dollars each.
In December, for instance, Walmart agreed to pay $10 million to settle a BIPA-related class action lawsuit, sending $450-$760 payments to about 22,000 employees, and more than $3 million to the lawyers who filed the class action.
At the other end of the spectrum, Nemera, a pharmaceutical device maker in suburban Buffalo Grove, agreed in October to pay $485,000 to settle a BIPA class action filed by plaintiff James Bryski in 2018. Under that settlement deal, 462 Nemera employees would receive about $650 each. Lawyers from the Stephan Zouras would receive more than $160,000.
Separately, timeclock vendors, including ADP and NovaTime, have agreed to settle BIPA-related class action claims against them. ADP, for instance, agreed last year to pay $25 million to settle the class actions against it. Lawyers, again, were scheduled to be paid one-third of that total.
Rather than settle, to this point, Weathertech has opted to attempt to persuade the court to pin any potential damages on ADP and Paychex.
According to the “third party complaint,” filed last November, Weathertech asserts it had nothing to do with the operation of the biometric timeclocks installed by ADP and Paychex. Any alleged failures under the BIPA law, then, should be the responsibility of the vendors, Weathertech claimed.
Weathertech’s complaint said Paychex supplied and serviced its timeclocks until 2014, and ADP did the same for Weathertech’s timeclocks from 2014-2019.
Weathertech asserts both Paychex and ADP allegedly failed to educate Weathertech on how their timeclock systems worked; failed “to inform Weathertech as to the implications of the use of the respective timeclock technologies and their implications with … BIPA;” and failed to follow the notice and consent provisions of BIPA when installing and operating the timeclocks for Weathertech.
Weathertech further pointed to language in ADP’s contract which allegedly requires ADP to pay Weathertech should the manufacturer suffer any damages “as a direct result of the criminal or fraudulent acts or willful misconduct of ADP or any of its employees.”
Weathertech is represented by attorneys Tim Schaum and Robert Grabemann, of the firm of Daspin & Aument, of Chicago.
Neither Paychex nor ADP has yet replied to Weathertech’s complaint.
In a motion requesting extra time to answer, Paychex noted it only learned of the complaint in early December, and had not been a party to the lawsuit against Weathertech.