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Illinois Supreme Court Says Union Workers Can’t Sue Under BIPA Law

March 27, 2023

When it comes to the Biometric Information Privacy Act (BIPA), recent developments have definitely favored plaintiffs.  This week, companies received some encouraging news as the Illinois Supreme Court said U.S. labor law bars unionized workers from suing their employers for violations of the state's biometric privacy law, which can expose companies to massive penalties. (See Ruling) In Illinois, approximately 13 percent of workers in the state are unionized.

Illinois’s top court unanimously held that campus security workers at a Chicago-area university must bring claims that the school used their fingerprints for timekeeping without their consent in union arbitration rather than court.

A coalition of business groups and industries backed the university via legal briefs submitted to the court. The groups argued that a ruling against the university would create uncertainty over the enforceability of union contracts and hobble employers' ability to negotiate agreements with unions.

The Illinois Biometric Information Privacy Act (BIPA) requires companies to obtain permission before collecting fingerprints, retinal scans and other biometric information from workers and consumers. The law imposes penalties of up to $5,000 per violation which can add up quickly in class action lawsuits.  In an earlier ruling, the state’s top court ruled that every swipe a worker makes could be a violation, not just the initial swipe.  After that ruling, filings of BIPA lawsuits jumped.

The BIPA, adopted in 2008, is the only law in the U.S. that grants workers and consumers a right to sue over the mishandling of biometric information.

But the state Supreme Court on Thursday said federal labor law preempts that right for unionized workers because their collective bargaining agreements establish procedures for arbitrators to hear legal disputes.  In its ruling, Illinois’ top court affirmed recent appellate court rulings that had reached the same conclusion.

If you have questions about how this development may affect your organization, please contact Garrett L. Boehm, Kevin G. Owens or Pat Gloor.

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