The Illinois Supreme Court unanimously ruled on Thursday that the Illinois Biometric Information Privacy Act (BIPA) is not preempted by the Illinois Workers’ Compensation Act (IWCA).
This decision clears the way for employees to pursue BIPA statutory damages ($1,000 for each negligent violation or $5,000 for each intentional or reckless violation), a significant and costly defeat for employers in a case that was followed closely by attorneys on both sides of the bar.
We’ve written previously about the growth of BIPA lawsuits, including its strict pre-collection disclosure and policy mandate. Such claims generally involve allegations that employers collected workers’ biometric data using fingerprints, hand scans, or retina scans for authentication and timekeeping purposes without providing disclosures or obtaining the written release mandated by BIPA.
In this recent decision, the Court agreed that Symphony Bronzeville Park, LLC, couldn’t dismiss a former employee’s BIPA claim because the plaintiff’s claims for BIPA statutory damages over the collection of her biometric information was not covered as a workplace injury arising out of and in the course of her employment pursuant to IWCA.
Specifically, the plaintiff’s loss of the ability to maintain her privacy rights was not a psychological or physical injury that was compensable under IWCA.
The Court concluded that nothing in BIPA suggests that it was intended to be preempted by IWCA and rejected Symphony Bronzeville’s arguments to the contrary. The Court was not swayed by the employer and amici’s arguments based on public policy grounds, including that IWCA’s exclusivity provisions would be destroyed by artful pleading and the floodgates would be opened to financially ruinous litigation against employers. In the Court’s view, these considerations are more appropriately addressed to the Illinois legislature.
This is the latest setback for employers in an evolving area of law, raising the stakes for employers further as they seek to proactively avoid these lawsuits and find other litigation strategies to defeat pending cases.