Another BIPA Litigation Permutation Strikes, This Time Concerning Preemption
As our regular readers know, CPW loves to cover the Illinois Biometric Information Privacy Act (“BIPA”). We have written extensively about BIPA to the point that it is one of our three dedicated “Power Centers”. We also recently published a primer on the status of standing for BIPA claims. Now, we have a new development to report. A recent case extended the notion that federal law precludes BIPA claims when a collective bargaining agreement must be interpreted. Read on to learn more about this development and the implications that it will have.
But first, for newcomers, an abridged review of BIPA.
Enacted in 2008, BIPA regulates the sale and storage of “biometric information”. Id. at 740 ILCS 14/10. When it was enacted, the Illinois General Assembly acknowledged that BIPA was ahead of the times. The statute itself reflects this recognition by stating, in part, “The General Assembly finds . . . [t]he use of biometrics is growing in the business and security screening sectors . . . [and] [t]he full ramifications of biometric technology are not fully known”. Id. at 740 ILCS 14/5(a), (f).
BIPA regulates “private entities”, which is broadly defined to include, “any individual, partnership, corporation, limited liability company, association, or group, however, organized”. Id. at 740 ILCS 14/10. Under BIPA, these entities have several regulatory obligations including, developing a written policy establishing a schedule for retaining biometric data and obtaining a written release from persons whose biometric data it collects. To enforce these obligations, BIPA created a private right of action that enables damages of up to $5,000 per violation, in addition to attorney fees and costs.
As we have reported, litigating BIPA claims becomes more complicated when Collective Bargaining Agreements are involved. In Miller, 926 F.3d 898 (7th Cir. 2019), a significant case on this point, the Seventh Circuit dismissed BIPA claims filed by unionized airline workers that it found were otherwise sufficiently alleged because they were preempted by federal law. Defendant argued that it provided the BIPA-required notice directly to the Union that represented the Plaintiff and that the Union consented to its biometrics-collections practices under the Collective Bargaining Agreement’s management rights clause. When required to interpret this clause of the agreement, the Court determined that federal law preempted the state law BIPA claims because the interpretation of Collective Bargaining Agreements must be done under federal law, specifically, the Railway Labor Act. Otherwise, applying state law to interpret such agreements “might lead to inconsistent results since there could be as many state law principles as there are states”.
Since then, Miller’s finding has steadily expanded to instances besides where the Railway Labor Act was implicated. The most recent expansion comes in Barton v. Swan Surfaces, LLC, No. 20-cv-499, 2021 U.S. Dist. LEXIS 38464 (S.D. Ill. Mar. 2, 2021), when the Court granted a motion to dismiss after finding that the Labor Management Relations Act preempted the Plaintiff’s BIPA claims.
In Barton, a manufacturing worker filed a lawsuit alleging that her former employer violated BIPA by failing to both: (1) institute, maintain, and adhere to a publicly available retention schedule; and (2) obtain informed written consent and release prior to acquiring any biometric information. The former employer moved to dismiss, primarily arguing that federal law precluded its former employee’s state law claims.
The Court agreed with the former employer and found the BIPA claims were precluded because the claims would have required interpretation of the Plaintiff’s Collective Bargaining Agreement. The Court reconciled the fact that the case before it addressed the Labor Management Relations Act, and not the Railway Labor Act that was discussed in Miller, with a note that “the Supreme Court has held that the [Railway Labor Act] preemption standard is virtually identical to the pre-emption standard the Court employs in cases involving . . . the [Labor Management Relations Act]”. Further supporting its conclusion, the Court analyzed four cases in the Northern District of Illinois that also found the Labor Management Relations Act preempted BIPA claims.
There you have it. Barton illustrates the expansion of federal preemption to BIPA claims when different federal legislation is impacted. Although Miller addressed the Railway Labor Act, Barton is the latest case to expand its holding to matters that implicate the Labor Management Relations Act. And for more news concerning developments in data privacy litigation, stay tuned.