September 28, 2021

Volume XI, Number 271

Advertisement

September 27, 2021

Subscribe to Latest Legal News and Analysis
Advertisement

Don’t Run Prints: Illinois’s Biometric Privacy Law Used Against Employers

Does your company use fingerprinting or some facial recognition scanner as part of its clock-in, clock-out process? If your company has facilities or even some contacts with Illinois (and maybe other states in the future) you should pay heed to Illinois’s Biometric Information Privacy Act (BIPA) that is the subject of a new class action and has been the source of many prior lawsuits.

Illinois’ Biometric Privacy Law

The BIPA states that no private entity may “collect, capture, purchase, receive through trade, or otherwise obtain a person’s or a customer’s biometric identifier or biometric information” unless it first:

  • Informs the subject in writing that a biometric identifier or biometric information is being collected or stored;

  • Informs the subject in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used; and

  • Receives a written release executed by the subject or the subject’s representative.

The BIPA also prohibits businesses from disclosing a person’s biometric information without first obtaining consent and  requires businesses to develop and comply with a publicly available written policy for retention and destruction of the information. The BIPA is recognized as one of the strongest state laws protecting individuals’ biometric data and expressly excludes photographs and information from a patient in a health care setting from the definition of biometric identifier.

Family Dollar Class Action

A putative class of employees recently filed a complaint against Family Dollar and Dollar Tree Inc. in Cook County, Illinois alleging violation of the BIPA. Herron, the representative plaintiff, worked as an hourly employee at Family Dollar in 2017 and had to provide finger scans to clock in and out. The complaint alleges that Family Dollar did not inform the employees in writing of the purpose or obtain consent.

Other Lawsuits and Developments

Lawsuits alleging employer violations of BIPA have become commonplace in Illinois in recent years. Walmart recently settled a BIPA employee class action for $10 million. A case currently before the Illinois Supreme Court could decide whether the exclusive remedies under the workers’ compensation law preclude claims for statutory damages under the BIPA where an employee alleges a violation of statutory rights. A defense victory could have a considerable effect on the pending class actions, including the Herron matter.

BIPA critics suggest the law has been abused and leads to frivolous lawsuits. A bill introduced in the Illinois General Assembly would revise and limit the BIPA’s reach.

As of now, the BIPA provides for statutory damages of $5,000 for each willful and/or reckless violation, or $1,000 for each negligent violation. According to the Illinois Supreme Court, an individual need not allege or prove an actual injury to recover damages; the mere violation will create statutory liability.

While other states have regulated the use of biometric information, Illinois is currently the only one that creates a private right of action. A National Biometric Information Privacy Act of 2020 was introduced in August 2020 and is pending in the Senate now. As drafted, it includes a private right of action.

If You Are in Illinois or Have Illinois Contacts You should …

If you have facilities in Illinois or some contact with Illinois, you should examine and comply with the BIPA’s requirements. Any clock in, clock out procedures should not involve biometric information unless you have met and documented the consent requirements. Lawsuits alleging BIPA violations have been filed outside of Illinois if a company has sufficient contacts, so you need to be careful. State biometric protection laws may become more common, so carefully examine your practices if fingerprint scanners or any type of biometric recognition technology is part of your operations.

© 2021 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 206
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Keith S. Anderson Financial Services Attorney Bradley Arant Boult Cummings law Firm Birmingham Alabama
Partner

Keith Anderson has wide-ranging experience across multiple jurisdictions and concentrates his practice on representing financial institutions in the financial services industry, as well as representing employers in employment matters.

His financial services practice includes representing financial institutions, mortgage lenders and servicers, student loan lenders and servicers, auto-finance lenders in defensive litigation throughout the country. Keith has handled causes of action and advised on matters including TILA, RESPA, HOEPA, FDCPA, FCRA,...

205.521.8714
Anne R. Yuengert Employment Attorney Bradley Birmingham
Partner

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators...

205-521-8362
Advertisement
Advertisement
Advertisement