BIPA Bellwether: New U.S. Southern District of Illinois Decision Holds Labor Management Relations Act Preempts Employee BIPA Claims
Welcome back to Vedder Price’s BIPA Bellwether series. As with our TCPA Turnstile, we intend for the BIPA Bellwether to serve as a periodic report on latest developments.
Last week, the Southern District of Illinois decided to dismiss the lawsuit in Barton v. Swan Surfaces LLC, No. 20-CV-499-SPM, 2021 WL 793983 (S.D. Ill. Mar. 2, 2021). In doing so, the Southern District joined the U.S. Northern District’s trend of finding claims brought under the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14 et seq., to be preempted by the federal Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, when interpretation of a collective bargaining agreement is required. This growing trend suggests that Illinois federal courts are beginning to rein in the cottage industry among class action attorneys that BIPA has sparked.
In Barton, the plaintiff alleged that her employer collected and used employee fingerprints without following several of BIPA’s requirements. The defendant responded by pointing out that the plaintiff was a party to a collective bargaining agreement (“CBA”) during her entire employment period. Id. at *2. This fact warranted dismissal, the defendant argued, because Section 301 of the LMRA preempts state law claims when resolution of the claim “requires the interpretation of a collective-bargaining agreement.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988).
On this point, the district court explained that the Seventh Circuit’s decision in Miller v. Southwest Airlines, Inc., 926 F.3d 898 (7th Cir. 2019), bound the court to find that resolution of the plaintiff’s BIPA claims ultimately required the interpretation of her CBA. As in Barton, the plaintiff in Miller asserted BIPA claims against her employer and the employer argued preemption based on plaintiff’s CBA.1 The Seventh Circuit held that resolution of the BIPA claims required interpretation of the CBA’s management rights clause, which stated: “The right to manage and direct the work force, subject to the provisions of the Agreement, is vested in and retained by the company.” Barton, 2021 WL 793983 at *6. Noting this language, the Southern District explained that the argument for preemption is even stronger in the Barton case because the CBA’s management rights provision specifically contemplates the defendant’s use and control of biometric technology:
In this case, biometric data may have been anticipated in that it was specifically mentioned in the CBA management rights clause, and consequently, like Miller, it is an issue for review and interpretation….
As a result, the district court held that the plaintiff’s BIPA claims were preempted because resolution of the claims required interpretation of the management rights clause.
In further supporting its decision, the Southern District cited four Northern District of Illinois cases, all decided within the last year. The growing number of cases finding BIPA claims to be preempted by § 301 of the LMRA suggests that federal courts are beginning to look for avenues to rein in the flood of BIPA class action lawsuits in the employment context. A similar trend within Illinois state courts was noted in our last entry.
1 Note that the argument for preemption in Miller was premised on the Railway Labor Act (“RLA”) rather than Section 301 of LMRA. The Supreme Court has held, however, that the standards for preemption under both of these acts are “virtually identical.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260 (1994).