The Illinois Supreme Court has dealt another blow to employers seeking to limit their potential payouts, should they be among the rising ranks of hundreds of employers hit with class actions under Illinois’ biometrics privacy law.
On March 1, the Illinois Supreme Court turned away an appeal from consumer food packaging company Ring Container Technologies, which was looking to ask the court to limit the scope of a class action brought by a group of its current and former employees.
The case against Ring Container has been pending since 2019, when employee Scott Marion filed a class action lawsuit against the company in Kankakee County court.
That action, brought on behalf of potentially many other Ring Container employees at the company’s three Illinois locations, asserted Ring Container violated the Illinois Biometric Information Privacy Act in the way the company required its workers to scan their fingerprints when punching the clock.
The lawsuit was essentially like thousands of other class actions brought against Illinois employers in the past seven years under the BIPA law. These lawsuits typically assert employers failed to obtain written consent from employees before requiring them to scan fingerprints or other biometric identifiers to verify their identity when punching in and out of work shifts, or accessing secure areas within a workplace, like a medicine dispensary or cash room. The lawsuits also assert employers failed to provide workers with notice and information concerning how the scanned data would be collected, stored, used, shared, and ultimately destroyed.
Under the BIPA law, plaintiffs are allowed to demand damages of $1,000-$5,000 per violation. Courts have interpreted the law to define individual violations as each instance in which someone’s biometrics are scanned. In employment cases, this could mean employers could be on the hook to pay up to $5,000 for each time an employee scanned a fingerprint in the workplace.
This could mean employers could face potential payouts well into the millions, if not billions of dollars, depending on the size of the company, among other factors, should an employer lose at trial.
Facing such risk, many employers in recent months have opted instead to settle. Such settlements have ranged from hundreds of thousands of dollars, up to $50 million, with plaintiffs’ lawyers typically taking one-third of the settlement funds.
However, other employers have continued to fight cases against them.
In January, for instance, the Illinois Supreme Court shot down arguments pressed by a nursing home group that BIPA claims brought within the employment context should be restricted by the state’s workers’ compensation law. Since the claims alleged the workers were “injured” by an action taken by their employer, such claims should belong in Illinois’ workers’ comp arbitration system, the nursing home operator claimed.
The state Supreme Court, however, said BIPA-related violations were not the same as physical or psychological injuries workers may suffer in the workplace, and for which the workers’ comp system was created.
Meanwhile, the Illinois Supreme Court will soon rule on a different question: How far in the past workers can reach to press their claims.
Specifically, in the case known as Tims v Black Horse Carriers, the two sides differ over which time limit should apply. The employer in the case argues the proper limit for BIPA cases should be a one-year limit for “wrongful publication,” established under the state law governing defamation and libel claims.
Plaintiffs, however, argued the correct period should be a five-year window established in the state’s “catch-all” statute of limitations, for most other civil actions not governed by a specific statute of limitations.
A Cook County judge and a state appeals court have both backed the five-year limit.
But as the workers’ comp and wrongful publication questions have played out, Ring Container has continued to press for an answer in its case.
In addition to arguing over the other questions, Ring Container also has argued BIPA class actions should be limited to a two-year statute of limitations that generally applies to personal injury cases.
However, Ring Container’s effort to get that question addressed by a state appeals court has been stymied since early 2021, when the Illinois Third District Appellate Court, in Ottawa, put the case on hold, as they awaited the Supreme Court’s decisions on the other two questions.
After the Third District rejected Ring’s request to lift the stay on their appeal, Ring’s lawyers attempted to take their case directly to the Illinois Supreme Court, rather than continue to wait on the Third District court.
In a petition for direct appeal filed Feb. 11, Ring Container said their case presented a weighty question the court should consider before it decides Tims v Black Horse Carriers.
“… The fact that Tims concerns only one statute of limitations is highly problematic because … there is more than one potentially applicable limitations period,” Ring’s lawyers wrote in the appeal petition.
In the workers’ comp case, they wrote, “this court characterized injuries stemming from BIPA violations as being ‘personal and societal injuries.’ This is particularly noteworthy because the applicability of the two-year statute of limitations for personal injuries is part of Ring Container’s appeal, but is absent from Tims.”
The Supreme Court could address all questions related to the statute of limitations at one time, if it took Ring’s case, at the same time as the action vs Black Horse Carriers.
The Supreme Court, however, has denied that request, without explanation or dissent.
Ring Container is represented by attorneys Melissa A. Siebert and Matthew C. Wolfe, of Shook Hardy & Bacon, of Chicago.
Marion and the plaintiffs are represented by attorney David J. Fish, of the firm of Fish Potter Bolaños, of Naperville.
The case of Tims v Black Horse Carriers remains pending before the state Supreme Court.