The Illinois Supreme Court will soon decide whether union-represented workers in Illinois can bring potentially massive class action lawsuits against their employers under Illinois’ biometrics privacy law, or whether their individual claims are blocked by their collective bargaining agreements, under federal law.
On May 25, the Illinois Supreme Court granted a petition from plaintiffs representing workers at Chicago’s Roosevelt University, allowing them to appeal a decision from a state appeals court that would have all but shut down their class action suit against the university.
However, with the state high court’s permission, those Roosevelt University workers will now get a chance to revive their case.
Ryan Stephan of Stephan Zouras LLP
| stephanzouras.com
Should they succeed, they could also succeed in removing one of the largest legal shields established by courts, to date, against the barrage of class action lawsuits against Illinois employers under the state’s Biometric Information Privacy Act.
Since at least 2015, thousands of employers throughout Illinois, of many different types and sizes, have been targeted by BIPA-related class actions.
Generally, the lawsuits have accused the employers of improperly requiring workers to scan a fingerprint, handprint or other biometric identifier to verify their identities when punching the clock to begin or end work shifts, or when accessing secured areas within the workplace, such as drug lockers, cash rooms, or rail yards, among others.
The lawsuits specifically typically claim the employers did not obtain written consent from workers before requiring the scans, nor did they provide employees with written notices concerning why the company was collecting the biometric scans, and how the company might use, store, share and ultimately destroy the scanned fingerprints or other biometric information.
Employers and their representatives have described such class actions as potentially financially ruinous for businesses. Under the BIPA law, plaintiffs are allowed to demand damages of $1,000 or $5,000 per violation, depending on how severe the alleged violation of the BIPA law may have been.
To this point, defendants have feared the law could be interpreted to define an individual violation as each time a company scans a worker’s biometric identifiers without first abiding by the notice and consent provisions.
The Illinois Supreme Court is expected to soon weigh in on that question.
However, for now, employers, in particular, have expressed concern that the law could leave them on the hook for potentially massive damages, while inflicting no real harm on anyone.
However, at the same time, courts so far have done little to reduce the potential damages, and to give companies the opportunity to defend themselves against the lawsuits, which critics have derided as “gotcha” actions.
Faced with massive potential financial risks, a growing number of employer defendants have opted to settle, paying out settlements worth up to $50 million each.
A notable exception to this point have been lawsuits brought by workers represented by unions.
Several federal judges, including the U.S. Seventh Circuit Court of Appeals, have determined federal labor laws may prohibit individual workers from bringing claims against their employer, if they are represented by a union.
The court backed Roosevelt University in its contention that plaintiff William Walton, who worked in Roosevelt’s campus safety office, couldn’t lead a class action lawsuit against the university, because he and other workers like him are represented by the Service Employees International Union. The court said his unit’s collective bargaining agreement governs timeclock procedures.
So, the court found, union members’ rights to sue under the BIPA law are reduced by their membership in a union, if that union negotiates on their behalf concerning how employers may require workers to punch the clock.
The appellate court determined such BIPA-related claims, brought by union members against their employers, belong before an arbitrator, not a court of law.
“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,” Illinois First District Appellate Justice Nathaniel Howse wrote. “Walton cannot bypass his union, his sole and exclusive bargaining agent, to demand that Roosevelt deal with him directly on this issue.”
That decision overruled a decision from Cook County Judge Anna Helen Demacopoulos who had determined the rights to sue under BIPA existed apart from the conditions of employment negotiated by a union under a CBA.
The Illinois Supreme Court will be the next – and most persuasive – court to weigh in on the question of whether a worker’s right to sue their employer exists as part of the employment relationship, or is entirely somehow separate.
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.
The Supreme Court will next convene for scheduled arguments in September.