Illinois Supreme Court Rules BIPA Claims Are Not Preempted by the Illinois Workers’ Compensation Act
On February 3, 2022, the Illinois Supreme Court issued its long-awaited decision in McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511, ruling that statutory violations of the Illinois Biometric Privacy Act (“BIPA”) are not preempted by the Illinois Workers’ Compensation Act (“IWCA”). The McDonald decision is a victory for BIPA plaintiffs and shuts the door on a defense that had been widely invoked by employers defending BIPA class actions.
BIPA regulates the use, collection, and handling of biometric identifiers including retina or iris scans, fingerprints, voiceprints, or records of hand or face geometry, by private entities including employers. Among other things, BIPA requires private entities to obtain individuals’ written consent before collecting, using, storing or disclosing biometric data. Aggrieved individuals may bring a private right of action for alleged BIPA violations, which can result in liquidated damages of up to $5,000 per violation, plus attorneys’ fees.
The plaintiff was a former employee of Symphony Bronzeville Park, LLC and alleged Bronzeville had collected, used, and stored her and other employees’ biometric data by using a fingerprinting timekeeping system without their consent. Bronzeville moved to dismiss the BIPA claim, arguing the claims were barred by the exclusive remedy provision of IWCA. Bronzeville principally contended that the IWCA provided the exclusive remedy for all accidental injuries transpiring in the workplace, including BIPA violations.
In affirming the decision by the Illinois Appellate Court for the First District, the Illinois Supreme Court held that the violation of an employee’s statutory privacy rights under BIPA is not a work-related injury under the IWCA. While the Court agreed with Bronzeville that the IWCA provides the exclusive means by which an employee can recover against an employer for a work-related injury, the Court reasoned that BIPA violations fall under the statutory exceptions to IWCA’s exclusive remedy provisions for injuries that are “not compensable” under the statute. Relying on Illinois Supreme Court precedent, the McDonald Court reasoned the IWCA’s compensability inquiry does not depend on whether an injury was “literally compensable.” Rather, the proper inquiry here is whether the plaintiff sustained a physical or psychological injury within the scope of her work-related duties.
In rejecting Bronzeville’s argument, the Court stated the main purpose of IWCA is to provide financial protection for injured workers until they can return to the workforce. Whereas the personal and societal injuries caused by a BIPA violation – akin to an invasion of privacy – differ in nature and scope from the physical and psychological work injuries that are compensable under the IWCA. Simply put, a BIPA violation does not negatively impact an employee’s ability to work. Because a BIPA injury is not the type of injury compensable in a workers’ compensation proceeding, the Court ruled McDonald’s lawsuit was not preempted and may proceed in Illinois state court.
PUTTING INTO PRACTICE: In recent years, dozens of BIPA cases have been stayed pending the resolution of the McDonald case. Now that McDonald has rejected the preemption defense, those stays are likely to be lifted so those actions can proceed with discovery. The IWCA-preemption defense is no longer viable in BIPA actions brought by employees against their employers. Unless the Illinois legislature amends BIPA, BIPA claims arising out of an employment relationship may be fully litigated in court instead of in workers’ compensation proceedings.