Kronos, one of America’s largest makers of workplace employee time clocks, will be allowed, for now, to attempt to defend itself against a massive class action lawsuit under Illinois’ biometric privacy law, with potentially billions of dollars at stake, by arguing workers effectively consented to the collection of their biometric identifying information by repeatedly scanning their fingerprints when using Kronos devices to punch the clock at work.
Judge Feinerman noted Kronos’ lawyers have explained that the company “believed in good faith that Plaintiffs’ implied or express consent to the collection and dissemination of their biometric information satisfied the consent requirements” of Illinois’ law.
That, he said, is enough to allow Kronos to forge ahead with that defense, at least until plaintiffs again challenge the legal validity of the defense at “some other juncture” in the proceedings.
Kronos, of Lowell, Mass., has been in Chicago federal court since 2019, defending itself against a potentially sprawling class action lawsuit, accusing Kronos of violating the Illinois Biometric Information Privacy Act (BIPA.)
According to the complaint, Kronos supplied employee punch clocks and other similar devices to employers throughout Illinois. Those devices required employees to scan their fingerprints to verify their identity each time they punched the clock to begin or end a work shift.
Further, the complaint asserted, the Illinois BIPA law required Kronos to secure express written permission from those workers before they began scanning fingerprints – protected
However, the complaint asserted Kronos failed to secure written consent, nor did it provide its customers’ workers with notices explaining how the scanned fingerprints would be used, stored, shared or ultimately destroyed.
The class action is led by named plaintiffs Charlene Figueroa, who worked for Chicago-area supermarket chain Tony’s Finer Foods, and Jermaine Burton, who worked for packaging company BWAY.
The plaintiffs are represented by attorneys from the law firms of Edelson P.C. and Stephan Zouras, of Chicago, and the Fish Law Firm, of Naperville.
The class action seeks to recover damages on behalf of potentially thousands of workers throughout Illinois, employed by companies using Kronos devices.
The lawsuit seeks damages of $1,000-$5,000 per violation. The BIPA law has been interpreted to define individual violations as each time an employee scans a fingerprint. Such an interpretation could put Kronos on the hook for many millions of dollars, if not billions of dollars, in damages, should the case go to trial and Kronos lose.
Other timeclock vendors who have been sued under BIPA have opted to reduce their potential exposure under the law, and have settled. Kronos rival ADP, for instance, recently settled the BIPA class action against them for $25 million.
Kronos has contested the claims in the lawsuit since the beginning.
Kronos, for instance, has argued it would be “absurd” to require time clock vendors to bear the same obligations under BIPA as do those companies actually employing the workers using the clocks.
However, Judge Feinerman shot down that attempt to shortcircuit the action, ruling Kronos falls under BIPA’s provision covering those who “capture, purchase, receive through trade, or otherwise obtain” scanned fingerprints or other biometric identifiers.
In another case, the court is expected to weigh in on whether employees should be required to file valid BIPA claims within one year of the alleged violation, rather than five years, as plaintiffs have maintained.
However, in the meantime, Kronos and the class action plaintiffs have sparred over which kinds of legal arguments Kronos should be allowed to raise in its defense.
Among more than a dozen other so-called “affirmative defenses,” Kronos asserted, if workers continued to use the biometric time clocks repeatedly, scanning their fingerprints without objection, the court should decide those workers had effectively granted consent to the scans at some point.
The plaintiffs had objected to that line of defense, among others, and had asked the judge to strike them.
Feinerman, however, said the “good faith” defense could hold some merit.
If nothing else, Feinerman said, it could serve to limit Kronos’ liability and potential damages, as the court could find Kronos had acted in good faith.
Feinerman declined to rule on the merits of such “good faith” claims at this point, merely allowing Kronos to advance and build on them.
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.
Plaintiffs have been represented by attorneys Ryan F. Stephan, James B. Zouras, Andrew C. Ficzko and Haley R. Jenkins, of the firm of Stephan Zouras; and Jay Edelson, Benjamin H. Richman and J. Eli Wade-Scott, of Edelson P.C.