CHICAGO — A federal judge has refused to stop a class action accusing Amazon of violating Illinois’ biometric privacy law while screening employees for COVID-19 symptoms.
William Naughton worked as a product picker at an Amazon warehouse in Joliet in September and October 2020. In his complaint, he said the company initiated facial screening in June 2020 as part of a wellness check process. In addition to recording body temperature, he said the scanners and software captured and analyzed data on workers’ facial geometry and eyes.
The complaint alleged Amazon violated the Illinois Biometric Information Privacy Act because neither he nor his coworkers received written information regarding the collection and storage of their personal information, nor did the workers provide written consent for the collection of their information or its dissemination to a third party. He also said Amazon failed to develop a policy concerning how it would use, store, share and ultimately destroy the scanned biometric data.
Catherine T. Mitchell
| stephanzouras.com
Amazon’s primary argument was it would only be liable if the record showed it took an active step in obtaining the challenged biometric data. It based that contention on two other cases in the same federal court district where defendants won dismissal on similar reasoning.
Rowland, however, said those cases were different enough from the lawsuit against Amazon.
In one of those other cases, docketed as Namuwonge v. Kronos, a judge dismissed a complaint against a timekeeping company because it was the employer, not the vendor, that collected the data. In the other similar case, Heard v. Becton, Dickinson & Co., a judge dismissed the original complaint against a fingerprint scanner supplier, but allowed an amended complaint when the plaintiff changed the allegations to explain how the fingerprint equipment “extracts the unique features of that fingerprint to create a user template, and then stores users’ biometric information both on the device and in (its) servers.”
Naughton’s complaint alleged Amazon collected the data for its own use, Rowland wrote, adding the plaintiffs also said the company imposes the requirement as a condition of employment in one of its warehouses.
Rowland also rejected Amazon’s argument the complaint lacks sufficient allegations of possession of biometric data.
“By requiring that Naughton submit to scans disclosing his facial geometry, Amazon has taken the requisite ‘active step’ in collecting, and thus also possessing, the data,” Rowland wrote. “Beyond that, Naughton also specifically asserts that Amazon stores his biometric data in a database. This plainly satisfies the ‘possession’ requirement at the pleadings stage.”
She likewise said Naughton adequately alleged data disclosure in violation of BIPA, even though Amazon contended he didn’t specify which data it supposedly disclosed, where or when the disclosure happened or to which party.
“Amazon seeks to impose a heightened standard where there is none,” Rowland wrote. “All Naughton must plead is ‘plausible dissemination.’ He has done so here by indicating that Amazon has collected his facial geometry, disclosed that data to ‘other Amazon entities’ and to ‘third-party biometric device and software vendor(s)’ and other possible third parties. The law does not demand more at the pleadings stage.”
Rowland said Naughton’s request for leave to file a second amended complaint in order to substitute a named plaintiff remains under advisement and Amazon isn’t required to answer his first amended complaint until she rules on the substitution motion.
The plaintiffs are seeking damages of $1,000-$5,000 per violation, as allowed under the BIPA law. Courts have interpreted the law to define a violation as each time a biometrics scan takes place - in this case, that would mean each time a worker's face was scanned by Amazon's system. Multiplied over the number of workers employed by Amazon at its Illinois fulfillment centers, the potential money at stake in the case could easily stand at many millions of dollars.
Naughton is represented in the action by attorneys Ryan F. Stephan, James B. Zouras and Catherine T. Mitchell, of the firm of Stephan Zouras, of Chicago.
Amazon is defended by attorneys Kathleen A. Stetsko, Susan D. Fahringer, Ryan Spear and Debra R. Bernard, of the firm of Perkins Coie, of Chicago and Seattle.