Kronos, a maker of workplace employee time clocks, which is facing a massive class action under Illinois' biometric privacy law, has asked a Chicago federal judge to pause the suit while appellate panels address questions in two other cases that could affect, if not kill off, the suit vs Kronos and many other similar class actions in Illinois courts.
Kronos, of Lowell, Mass., was sued in Chicago federal court in 2019. The suit alleged Kronos breached the Illinois Biometric Information Privacy Act (BIPA), by failing to secure permission from its customers' employees to scan their fingerprints and not furnishing employees with written information as to how the scans would be used, stored, shared and eventually destroyed. The time clocks work by requiring employees to scan their fingerprints to verify their identity when punching in and out of work shifts, to prevent so-called "buddy punching" and "punch fraud," in which co-workers might punch the clock on behalf of another, to allow that co-worker to leave work early or arrive late, and still get credit for hours they did not work.
Plaintiffs in the suit are led by Charlene Figueroa, who worked for Chicago-area supermarket chain Tony’s Finer Foods, and Jermaine Burton, who worked for BWAY, which is a Chicago packaging company. They are represented by the Chicago firms of Edelson P.C. and Stephan Zouras, as well as by the Fish Law Firm, of suburban Naperville.
The action claims thousands of workers throughout Illinois used Kronos devices.
Kronos has argued it would be "absurd" to require time clock vendors to bear the same obligations under BIPA as do employers.
However, Judge Gary Feinerman disagreed last year, ruling Kronos falls under the law's provision covering those who "capture, purchase, receive through trade, or otherwise obtain" the fingerprints.
The appeals involve the case docketed as Cothron v. White Castle, before the Court of Appeals for the U.S. Seventh Circuit, and Tims v. Black Horse Carriers, which is now in front of Illinois First District Appellate Court.
In the Cothron case, fast food chain White Castle has argued courts have misinterpreted the law, in determining employers should be on the hook to pay potential damages of $1,000-$5,000 for each time an employee scans their fingerprint on a punch clock without written authorization, or without receiving a written notice, as allegedly required by the law. White Castle said the damages should be limited to the first time each employee would scan a print under those circumstances.
And in Tims, the defendants argue employees should be required to file their claims within one year of the alleged violation of their rights under BIPA, not five years, as plaintiffs have maintained.
"If the Seventh Circuit holds that BIPA claims accrue only on the first use of a time clock, and the Illinois Appellate Court holds that a one-year statute of limitations applies to BIPA claims, Plaintiffs’ claims will be barred. In that case, any effort and expense spent on litigating Plaintiffs’ claims while the appeals were pending would be wasted," Kronos contended.
Kronos continued: "The appeals in Cothron and Tims both have the potential to vastly influence the size of the class, as their combined outcome could limit or even eliminate putative class members’ claims. Efforts to conduct adequate class discovery and litigate the issue of class certification make little sense while so many unanswered legal questions are being considered by the Illinois Appellate Court and the Seventh Circuit. This alone warrants a stay."
To bolster its argument, Kronos told Feinerman the appellate activity will, at the very least, "fundamentally narrow" the issues before Feinerman, even if the appellate rulings do not finish off the suit.
Plaintiffs have not yet responded to Kronos' request for a stay.
In another BIPA suit in Chicago federal court, Judge Thomas Durkin granted the request from defendant Gold Standard Baking to pause the suit against them until the Cothron and Tims appeals are decided. Gold Standard had been sued in 2020 for allegedly violating the BIPA law's notice and consent provisions in the way it required its employees to scan their fingerprints when punching the clock.
The suits against Gold Standard, White Castle, Black Horse Carriers and Kronos are just some of the thousands of lawsuits brought under the BIPA law in the past five years in Cook County courts and elsewhere in Illinois and, now, the country.
Other states have biometric privacy laws, but only Illinois' law allows the right to bring massive actions against employers and other companies for mere technical violations of the law.
As examples from late last year of the amount of money involved in BIPA class actions, another maker of workplace biometric technology, Roseland, N.J.-based ADP, agreed to a $25 million settlement in Cook County Circuit Court, and another manufacturer, NOVAtime, of Rancho Cucamonga, Calif., agreed to a $14 million settlement in Chicago federal court. Judges have allowed plaintiffs' lawyers to collect one third of those settlement sums.
Stephan Zouras is also representing plaintiffs in the ADP and NOVAtime cases, with Edelson also representing plaintiffs in the ADP matter.
Kronos has been represented by attorneys Melissa A. Siebert, Erin Bolan Hines and Maveric Ray Searle, of the firm of Shook Hardy & Bacon; and Debra Bernard, of the firm of Perkins Coie, all of Chicago.