A new class action lawsuit accuses restaurant food supplier Sysco of violating Illinois’ biometrics privacy law by allegedly improperly scanning the faces of its truck drivers while they are on the job.
The face scanning system is allegedly supplied and operated by tech firm Samsara.
According to the complaint, which was filed in Cook County Circuit Court on Oct. 24, Sysco uses the face scanning system to monitor its drivers in real time to track their fatigue and “level of distraction.”
Attorney Douglas M. Werman of Werman Salas, P.C.
| Werman Salas, P.C.
Sysco allegedly installed the Samsara dash cams in its trucks in the summer of 2020, and has operated them since.
The complaint asserts Sysco installed the cameras without first securing written consent from the drivers to scan their faces, and without providing the drivers with notices concerning how their face scans would be used, stored, shared and ultimately destroyed by either Sysco or Samsara after a driver leaves the company, or the data is no longer needed.
The complaint alleges this failure to obtain consent and provide notice amounts to violations of the Illinois Biometric Information Privacy Act.
Samsara is not named as a defendant in the lawsuit.
However, that company currently faces a potentially massive class action now pending in Chicago federal court. In that action, potentially thousands of truck drivers could be included as plaintiffs, accusing Samsara of also violating the Illinois BIPA law by scanning the faces of truck drivers operating throughout Illinois.
A federal judge, to this point, has rejected efforts by Samsara to quickly end that class action. U.S. District Judge Sara Ellis most recently denied Samsara’s claims that the lawsuit amounts to an unconstitutional attempt to apply a state law to the trucking industry, which is subject to federal regulation.
The cameras have been set up in the cabs of the trucks to help the industry meet the demands of federal law and regulations established by the U.S. Department of Transportation to increase highway safety by getting drowsy truck drivers off the road.
Judge Ellis did not reject those legal claims outright. Instead, she denied the motion to dismiss, for now, because she said more time was needed to allow argument on those points.
The lawsuits against Sysco and Samsara are among a continuously mounting surge of thousands of class actions against businesses of all kinds and sizes in Illinois under the BIPA law.
The law has targeted big tech companies, like Facebook and Google, resulting in headline-grabbing settlements worth hundreds of millions of dollars.
However, the bulk of the lawsuits, to date, have taken aim at employers, accused of improperly requiring workers to scan fingerprints or other biometric identifiers to track their work hours, or to access secure facilities in the workplace, like medicine lockers in hospitals, cash rooms in retail stores, or secured rail yards.
A recent wave of BIPA-related lawsuits have targeted companies that use facial scanning or facial recognition technology. The class actions have hit:
- Retailers who use apps to help people virtually try on eyeglasses or cosmetics;
- Tech firms that scan photos posted online to help law enforcement and security companies identify potential criminal suspects; and
- Companies, like Samsara, that use cameras to monitor truck drivers and other workers to ensure work is being completed safely.
The lawsuits carry the possibility of big payouts from the businesses that are sued, and big paydays for the lawyers who bring the cases.
Under the law, plaintiffs can demand damages of $1,000-$5,000 per violation. The law has been interpreted to define individual violations as each time a face, fingerprint or other biometric identifier is scanned.
This could amount to many millions or even billions of dollars in damages, should a case go to trial.
In the first such trial involving a BIPA-related lawsuit, a federal jury ordered freight rail company BNSF to pay $228 million under a class action brought on behalf of about 14,000 truck drivers who were required to scan their fingerprints to enter BNSF rail yards in Illinois. BNSF has vowed to appeal the verdict.
To avoid such potential massive defeats at trial, a growing number of defendants have opted to settle the lawsuits. Such settlements have typically cost from hundreds of thousands of dollars to as much as $50 million.
Plaintiffs’ lawyers have typically claimed from 15% to 35% of those settlements as fees.
Rulings from judges in Illinois, to date, have also made the legal terrain very dicey for employers and others attempting to fight the BIPA lawsuits. Judges have largely rejected attempts by defendants to escape the lawsuits, or even reduce the potential damages.
Notably, the Illinois Supreme Court ruled in 2019 that plaintiffs don’t need to prove they were ever actually harmed by the biometric scans before pressing their claims for potentially mammoth damages. And, the state Supreme Court justices said at the time that the potentially devastating damages are simply a feature of the law, not a problem for the courts to address.
Business groups have urged reform of the law, to address its harmful effects on Illinois’ economy. But the state’s Democratic supermajority in Springfield have steadfastly refused to discuss such changes. Democrats in Illinois enjoy massive political funding from contributions from trial lawyers, including from law firms behind BIPA class action lawsuits.
The action against Sysco asks the court to order Sysco to pay the damages required under the BIPA law for “each violation” of the BIPA law, plus attorney fees.
The complaint does not estimate how many truck drivers may be included in the potential class action.
The lawsuit was filed on behalf of named plaintiff Michael Lloyd, identified as an Illinois resident who works as a delivery driver for Sysco, based out of suburban Des Plaines.
The lawsuit was filed by attorneys Douglas W. Werman, Maureen A. Salas and Michael Tresnowski, of the firm of Werman Salas, of Chicago; and Josh G. Konecky, Nathan B. Piller and Philippe M. J. Gaudard, of Schneider Wallace Cottrell Konecky, of Emeryville, California.