CHICAGO — A federal judge has grounded part of a class action challenging Envoy Air’s employee fingerprint scanning protocols under an Illinois biometrics law.
Maysoun Abudayyeh was a passenger service agent for Envoy at O’Hare International Airport in late 2015 when the carrier began requiring employees to use a handprint scanner time clock. Her lawsuit alleges the company violated requirements under the Illinois Biometric Information Protection Act (BIPA), to give employees written notice regarding data collection and to develop and release a plan for how data would be stored, disseminated or destroyed.
Envoy said Abudayyeh’s BIPA claims should be dismissed because, under federal transportation labor law, they belong in mandatory arbitration. The airline specifically asserted the claims are preempted under the Railway Labor Act and the Airline Deregulation Act of 1978."
Abudayyeh argued that although the RLA can pre-empt similar claims, hers should proceed to trial because the alleged BIPA violations predate a final union agreement that would force the issue to arbitration. Envoy said “there were other forms of collectively bargained agreements” in place.
In an opinion issued Aug. 3, U.S. District Judge Andrea Wood said she didn’t need to see “a formal or final collective bargaining agreement,” just an “existing agreement” with language supporting Envoy’s position. Regarding one interim agreement, Wood continued, the complaint fell short.
“At most, Abudayyeh demonstrates only that the relevant language is subject to interpretation, not that Envoy’s argument is insubstantial or frivolous,” Wood wrote. “Because Envoy can point to an arguable contractual basis for the Union’s consent to the collection of PSAs’ biometric information, the court’s inquiry must end — it is not to consider the merits of the underlying dispute.”
Wood therefore dismissed any claims arising after the execution date of that agreement, which was April 26, 2017. She then turned to an interim grievance procedure, effective June 29, 2016. While Abudayyeh challenged the lack of a board to hear grievances, Wood said that argument “is merely conjectural” because there’s no evidence she tried to use any of the procedures that agreement established.
Envoy further said the union never objected to the scanning system, arguing that meant the grievance procedure contained implied consent. Wood agreed that position is at least plausible and dismissed BIPA claims dating back to the grievance procedure.
However, Wood rejected Envoy’s attempt to expand the exemption window to a period between union certification and the effective date of the interim grievance procedure agreement. That time period, Wood explained, doesn’t allow for “implied agreements based on past practice” because there was no “initial, express collectively bargained agreement” in place.
Wood then further established the Airline Deregulation Act doesn’t pre-empt Abudayyeh’s remaining claims. Envoy argued Abudayyeh’s lawsuit concerns industry aspects affecting “safe passenger transportation,” Wood wrote, adding that while she didn’t “doubt that Envoy’s biometric attendance-tracking system has an ancillary security benefit, it is also quite clear that its primary purpose is to track the PSAs’ attendance and hours.”
In order to prove pre-emption, Wood continued, Envoy would have to show how the BIPA requirements it allegedly skirted “have some economic impact on its ability to keep passengers safe.”
Although Envoy cited several cases where the ADA pre-empted lawsuits concerning personal data, Wood noted they all involved customers, reservations and ticket sales, not employees and passenger safety.
Envoy is represented in the case by attorneys Mark W. Robertson, Sloane Ackerman and Charles J. Mahoney, of the firm of O'Melveny & Myers, of Chicago.
The plaintiffs are represented by attorneys Alejandro Caffarelli and Alexis D. Martin, of Caffarelli & Associates; and Robin Potter and Alenna K. Bolin, of Potter Bolaños, each of Chicago.