A state appeals panel agreed federal labor law blocks union members from advancing class action lawsuits under Illinois' biometrics privacy law.
William Walton, who worked in Roosevelt University’s campus safety department, filed a lawsuit alleging the school violated BIPA by requiring workers use a handprint timeclock without obtaining their informed, written consent to obtain and disseminate the information and without developing a data retention policy, allegedly required by the law.
Roosevelt moved to dismiss the complaint, arguing the federal Labor Management Relations Act pre-empted Walton’s claim because he belonged to the Service Employees International Union and his labor unit's collective bargaining agreement governs timeclock procedures. The university further said the contract’s management rights clause gives it broad authority to control employment terms.
Cook County Circuit Judge Anna Demacopoulos sided with Walton, finding BIPA claims aren’t “intertwined with or dependent substantially upon consideration of terms of a collective bargaining agreement.” She said BIPA rights exist independently of employment and denied the motion to dismiss.
Although Demacopoulos denied Roosevelt’s motion to reconsider her dismissal, she agreed to certify the legal question to the Illinois First District Appellate Court for review.
The appellate court issued its opinion on the matter Feb. 22. Justice Nathaniel Howse wrote the opinion; Justices James Fitzgerald Smith and Cynthia Cobbs concurred.
In order to prevail, the panel said, an employer only needs to make a nonfrivolous argument that the conduct giving rise to the employee allegations falls under the union contract. The panel also noted that, while Roosevelt’s appeal was pending, the U.S. Seventh Circuit Court of Appeals issued an opinion in Fernandez v. Kerry that established the Labor Management Relations Act does pre-empt BIPA allegations.
“As Walton conceded at oral argument,” Howse wrote, “the relevant factual and legal circumstances of this case are indistinguishable from Fernandez, so our real objective in this appeal becomes to determine whether the court of appeals’ ruling on a matter of federal law is wrongly decided in such a way that we deem it to be without logic and reason.”
Howse further wrote the Seventh Circuit panel properly said when an employer cites a broad management clause, the next step is having an arbitrator determine if the employer and union bargained the disputed issue or if the union consented on workers’ behalf. Howse further noted Fernandez referred to 2019 Seventh Circuit opinion, Miller v. Southwest Airlines, which determined the Railway Labor Act pre-empted a BIPA claim.
“Under the Privacy Act, it is clearly within a union’s purview to negotiate with the employer about its members’ biometric information,” Howse said. “The grievances that Walton has raised against Roosevelt are all things that his union can bargain about, but his complaint raises the question of whether such bargaining has occurred, either implicitly or explicitly.”
Walton argued the union contract has no reference to biometric data and the union isn’t authorized to consent to handprint scan collection. But the panel said several federal courts have reviewed similar arguments and all sided with employers.
“Unions frequently bargain for matters concerning their members’ privacy and protection,” Howse wrote. “Collective bargaining agreements may include express and implied terms and it is up to an arbitrator, not a state court, to define the scope of the parties’ agreement.”
The panel further said it gives “considerable weight” to federal court opinions and noted issues like Walton’s have “been uniformly decided,” including more than a dozen federal district court opinions.
“Walton and his fellow unionized employees are not prohibited from pursuing redress for a violation of their right to biometric privacy — they are simply required to pursue those rights through the grievance procedures in their collective bargaining agreement rather than in state court in the first instance,” Howse concluded. “Walton cannot bypass his union, his sole and exclusive bargaining agent, to demand that Roosevelt deal with him directly on this issue.”
With the certified question answered, the panel remanded the complaint for further proceedings.
Walton has been represented in the action by attorneys Ryan F. Stephan, James B. Zouras, and Haley R. Jenkins, of the Stephan Zouras firm, of Chicago.
Roosevelt University is represented by attorneys David M. Schultz, John P. Ryan, and Adam R. Vaught, of Hinshaw & Culbertson, of Chicago.