The owners of the Save-A-Lot supermarket chain have agreed to pay about $762,000 to end a class action lawsuit accusing the store of improperly requiring its workers to scan their fingerprints when punching the clock, allegedly in violation of Illinois’ biometric privacy law.
On March 16, Cook County Circuit Judge Caroline Kate Moreland signed off on the settlement agreement between Saint Ann, Mo.-based Moran Foods and a class of plaintiffs, purportedly including nearly 700 workers.
Under the settlement agreement, workers would receive $625 each. Lawyers for the plaintiffs would receive 35% of the total settlement fund, or $267,656.
Plaintiffs were represented by attorneys Jay Edelson and J. Eli Wade-Scott, of the Edelson PC firm, of Chicago, and David Fish, of the Fish Law Firm, of Naperville.
Those attorneys filed suit against Moran Foods and Save-A-Lot in 2019, asserting the company had violated the Illinois Biometric Information Privacy Act in the way it required its workers to scan their fingerprints on the company’s biometric employee time clocks. The lawsuit was filed on behalf of named plaintiff Andre Brown, who had worked at a Save-A-Lot location.
According to Save-A-Lot’s website, the company operates six stores in the city of Chicago, as well as other Illinois stores in Chicago’s suburbs and Rockford, among other locations elsewhere in the state.
The so-called biometric time clocks used by Save-A-Lot and many other employers across the U.S. require employees to provide some kind of biometric identification – typically, a fingerprint – to verify their identity when punching the clock at the start and end of work shifts. Such verification is sought by employers to reduce incidences of so-called punch fraud, a practice in which workers will punch the clock on behalf of co-workers to make it appear they are on the job, when their colleagues have either arrived late or left work early.
In recent years, however, thousands of Illinois employers who use such systems have been targeted by a wave of class action lawsuits under the Illinois BIPA law. The lawsuits do not allege the workers were actually harmed by the practice of scanning fingerprints.
Rather, they say, the employers failed to first secure written authorization from employees before requiring them to scan their fingerprints, and failed to provide certain notices to workers allegedly required by the law, regarding how the company would store, use, share and ultimately, destroy the workers’ scanned fingerprint data.
Under the BIPA law, workers are allowed to demand damages of $1,000-$5,000 per violation, with individual violations defined as each time a worker scanned their fingerprint. For employers with hundreds or thousands of employees, such damages could quicky balloon to multiple millions of dollars of liability, if not more.
Further, under a recent Illinois Supreme Court ruling, plaintiffs do not need to demonstrate they were actually harmed by the data collection to sue in Illinois courts. Rather, to bring potentially massive lawsuits, they need only accuse an employer of violating the technical notice-and-consent provisions of the BIPA law.
Faced with such potentially massive judgments, many employers, defending themselves against such BIPA class actions, have opted in recent months to settle, rather than continue to fight a difficult battle in court.
According to the settlement agreement, Moran was awaiting a decision by Judge Moreland on its motion to dismiss the BIPA class action when the two sides entered settlement talks. They reached an agreement in August 2020, according to the agreement.
In the agreement, Moran said it continued to deny the accusations in the lawsuit. However, they said the deal was needed to “avoid the time, risk, and expense” of fighting the litigation, as well as the “risk posed by the … claim for damages under BIPA.”
Under the agreement, Moran agreed to pay a gross sum of $1,100 per employee included in the plaintiffs’ class. The settlement agreement said that class included 693 workers employed by Moran who had used Moran’s fingerprint-scanning time clocks since Feb. 27, 2014.
Moran was represented in the action by attorneys Joel Griswold, Bonnie Keane DelGobbo and Maria A. Boelen, of the firm of Baker & Hostetler LLP, of Chicago.