Fast food giant Wendy's has become one of the latest large employers in Illinois to be targeted by a class action under Illinois' stringent biometrics privacy law over worker fingerprint scans.
Victor Chacon, lead plaintiff in a class action lawsuit filed in Cook County Circuit Court, worked in 2018 and 2019 as a cook at the Wendy's at 3700 Touhy Ave., in suburban Skokie, according to the complaint.
"Wendy’s required its employees to clock in and out using their thumb and/or hand/finger scan," the suit says.
The Illinois Biometric Information Privacy Act (BIPA) requires employers to get permission before collecting biometric information, the suit says.
"At no time was Plaintiff informed in writing that his biometric information was being collected or stored or of the specific purpose and length of term for which his biometric information was being collected, stored, and used," according to the the suit. "At no time did Plaintiff execute a writing releasing or permitting Defendant to utilize his biometric information."
The biometric information could be stolen in a data breach, the suit says.
"The individuals to whom these sensitive biometric identifiers belong could have their identities stolen," it states. BIPA confers on Plaintiff and all other similarly situated Illinois residents a right to know of such risks, which are inherently presented by the collection and storage of biometrics, and a right to know how long such risks will persist after termination of their employment."
Employers throughout the state have been targeted by a blitz of thousands of such class action lawsuits under the BIPA law in the past eight years. The lawsuits universally seek damages of $1,000-$5,000 per violation, as allowed under the BIPA law. Recent decisions from the Illinois Supreme Court have directed courts to interpret the BIPA law in such cases to define individual violations as each time a worker scans a fingerprint, no matter how many times it may occur, over the five years preceding such a lawsuit.
When multiplied across entire workforces, scanning fingerprints on timeclocks and other workplace devices multiple times per day, damages can quickly rise into the many millions or even billions of dollars, should such cases proceed to trial. Faced with such risk, nearly all employers have opted to settle to have some control over how much they would pay, rather than take their chances at trial.
The suit against Wendy's seeks $5,000 per violation for "intentional and reckless violation" of the law and $1,000 for each negligent violation, plus legal fees.
The plaintiffs are represented by attorneys Michael L. Fradin and James Simon, both of Ohio.