A federal judge won’t let Chicago bakery Gold Standard Baking use a federal labor law to completely avoid a lawsuit accusing it of violating employees’ rights under the Biometric Information Privacy Act.
U.S. District Judge Thomas Durkin issued an opinion partially granting Gold Standard’s motion to dismiss a lawsuit from Brenda Herron, who alleged her former employer did not comply with BIPA’s notification and informed consent requirements before she used a fingerprint time clock up to 40 times each week.
Herron, who started in the bakery’s packaging department through a staffing agency placement in October 2017, was a directly-hired employee from September 2018 through December 2019. She sued the company in Cook County Circuit Court in November 2020.
The lawsuit alleged the company, until the second day of Herron’s direct employment, “did not tell her that it was collecting or storing her biometric data, why it was collecting, storing and using that data, or how long it planned to do so,” according to Durkin, and said each time she scanned her fingerprint before signing a written consent form constituted a distinct BIPA violation punishable by damages of $1,000 to $5,000.
On Feb. 22, 2019, Herron applied to the Chicago and Midwest Regional Joint Board Affiliated with Workers United/SEIU. Durkin said despite no documentation verifying her admission, the bakery attests she joined the union, making her subject to the collectively bargained contract. When the company removed the complaint to federal court, it asked Durkin to rule the Labor Management Relations Act pre-empts Herron’s claims because the union agreement dictated her employment terms.
Durkin said both the Illinois Supreme Court and U.S. Seventh Circuit Court of Appeals have issued rulings aligned with Gold Standard’s position under different federal laws. On top of its broad management rights clause, the bakery specifically pointed to time clock language in its union contract as well as a “multi-step grievance and arbitration procedure,” he wrote.
“Yet, the CBA did not apply to Herron before she became a GSB employee, even if she worked there through another employer,” Durkin said. “To begin, the CBA did not go into effect until April 1, 2018, after Herron had been working at GSB — and scanning her fingerprint — for nearly six months. Evaluating potential violations from scans during that six-month period would not require any interpretation of the CBA because it did not yet exist.”
And as a staffing placement worker, Durkin continued, the CBA didn’t apply to Herron until her direct employment began Sept. 23, 2018. Gold Standard argued a court needs to determine if Herron was a “temporary employee” as the CBA defines the term, which would place the dispute between the bakery and SEIU, pre-empting the lawsuit. But Durkin said Herron remained with her staffing agency well past the union’s 90-day probationary period for directly-hired workers.
“That is not an interpretation of the CBA, it is a fact,” Durkin wrote. “None of the alleged violations during her time as a temporary worker require an interpretation of the CBA.”
Durkin noted Herron agrees she cannot sue for any fingerprint scan on or after Sept. 23, 2018, but rejected the bakery’s attempt to have the entire lawsuit dismissed with prejudice for including counts from that point forward. Pointing to a recently settled but long-running BIPA lawsuit involving White Castle, Durkin said each alleged BIPA violation constitutes a separate claim and pre-empting some of those claims doesn’t preclude the others from proceeding.
“The overwhelming majority of the violations Herron alleges occurred before the CBA applied to her, and she brings her claims on an individual basis,” Durkin wrote in his order, dated May 9. The judge said he could dismiss the entire complaint without prejudice, and Herron pledged to amend her pleadings, which would lead to a remand to state court. So as a matter of judicial efficiency, he only dismissed — with prejudice — those claims accruing under her direct employment and remanded the remainder.
Durkin issued the ruling days before Illinois state lawmakers passed legislation that would rewrite the BIPA law specifically to state each alleged BIPA violation does not constitute a separate claim. Rather, under the approved legislation, each plaintiff would be entitled to sue for one violation of BIPA each, not potentially hundreds or thousands of violations per plaintiff.
Under the BIPA law, individual violations can generate payments of $1,000-$5,000 each.
Gov. JB Pritzker has not yet signed the legislation into law, nor indicated if he may veto the legislation in an attempt to kill it.
Herron is represented by Tom Kayes, of the Civil Rights Group, of Chicago.
“Ms. Herron and I appreciate the judge’s careful decision and we’re eager to pursue the case back in (Cook County Circuit Court,) where we hope to begin discovery very soon,” Kayes said in a statement.
Attorneys from the firm of Jackson Lewis, of Chicago, represents Gold Star Baking. The firm did not respond to a request for comment.