CHICAGO — A nurse staffing firm has agreed to pay $5.4 million to settle a class action alleging violations of Illinois’ biometrics privacy law.
Three former employees are suing Heartland Employment Services, which conducts hiring for HCR ManorCare, Arden Courts and Heartland Healthcare skilled nursing and rehabilitation facilities. As in thousands of similar Biometric Information Privacy Act lawsuits, the employees alleged the company used a fingerprint scanner time clock without following the law’s requirements to obtain written consent and to provide disclosure about data retention policies before requiring workers to scan their fingerprints when punching the clock.
On April 16, the legal firms representing the plaintiffs — Werman Salas, of Chicago, and The Fish Law Firm, of Naperville — filed a memorandum with U.S. District Judge Franklin Valderrama supporting their unopposed motion for preliminary approval of settling the complaint.
According to that filing, Heartland would create a $5.418 million settlement fund for up to 10,836 people who worked for the company in Illinois between Dec. 18, 2013, and April 23, 2019.
The lawyers representing the plaintiffs would recevie up to one third of the money, or about $1.8 million.
The named plaintiffs would receive $10,000 each as class representatives. Up to $75,000 would be paid to Analytics Consulting for serving as settlement administrator.
That would leave at least $320 for each class member, who will need to submit a claim form and can elect to have their payment electronically deposited. The amount will be prorated based on how many valid forms are processed. The plaintiffs’ filing cited a similar settlement with a grocery store chain in which 40% of 4,680 employee class members submitted a form, but projected closer to 50% in this instance “based on the more robust notice program,” meaning each participant could get about $640. If the class grows by more than 2% from the estimate in the preliminary settlement, Heartland will increase the settlement fund by $500 per person, according to the memorandum.
The legal action began Dec. 18, 2018, when named plaintiff Brenda Mason filed a class action complaint in Cook County Circuit Court. After Heartland removed the complaint to federal court, Mason amended her complaint on March 21, 2019, adding Lamont Davis as a class representative. On June 17, Heartland responded by denying the allegations and asserting 11 affirmative defenses. Specifically, they argued Mason couldn’t sue because she was subject to an arbitration agreement.
On Feb. 14, 2020, through a joint motion, Mason was dismissed as a plaintiff. Davis filed a second amended complaint on July 13, 2020, adding Nakea Blount and Shamikkah Slaughter as proposed class representatives, as well as a claim that Heartland didn’t follow BIPA rules about destroying data after workers left the company. The sides reached a settlement in principle on Feb. 3, then began negotiating the agreement.
According to the plaintiffs’ filing, Heartland should favor settlement because it faces fines of $1,000 per BIPA violation, if found to have been grossly negligent in committing the alleged violations. They also said settlement would avoid the time and expense of deposing Idemia, which makes fingerprint readers, and Kronos, the time clock provider, as well as expert witnesses. The plaintiffs said settlement is in their favor as well, as Heartland might be able to avoid damages based on an expected Illinois Supreme Court ruling on whether the Illinois Workers’ Compensation Act might block such BIPA lawsuits against employers, or whether another appellate court might determine BIPA lawsuits are limited by a one-year statute of limitations.
Other possible defenses, according to the plaintiffs, are that Heartland’s time clock system doesn’t collect identifiers as BIPA defines and that Valderrama could rule damages are discretionary, not mandatory.
Plaintiffs have been represented by attorneys Zachary Flowerree and Douglas Werman, of Werman Salas P.C.; and David Fish and Mara Baltabols, of the Fish Law Firm P.C., of Naperville.
Heartland has been represented by attorneys David K. Haase, Shanthi V. Gaur, Orly M. Henry, Jennifer L. Jones, and Daniel Y. Kim, of the firm of Littler Mendelson P.C., of Chicago.