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Stop, Do Not Pass Go: Federal Court Requires Employees to Pursue BIPA Claims in Arbitration and Before Adjustment Board

The Illinois Biometric Information Privacy Act (“BIPA”) went into effect in 2008 and has been heavily litigated since.  This week a court held that airline workers who filed a putative class action under BIPA regarding their employer’s practice of collecting employees’ fingerprints for timekeeping had to pursue their claims in arbitration and/or before an adjustment board—not federal court.  Crooms v. Sw. Airlines Co., No. 19-cv-2149, 2020 U.S. Dist. LEXIS 84360 (N.D. Ill. May 12, 2020).  This decision followed a Seventh Circuit Court of Appeals decision from last year involving similar facts.  See Miller v. Southwest Airlines Co., 926 F.3d 898 (7th Cir. 2019).  The court’s ruling is a big deal because employers, including those in the travel industry, are starting to track their employees’ biometric data on a widespread basis.

For the novices out there, BIPA was enacted for the specific purpose of addressing the heightened risk of identity theft associated with the processing of biometric data (face shape, fingerprints, etc.).  The statute includes specified safeguards intended to protect the privacy of personal biometric data of Illinois residents.  Because BIPA’s provisions apply broadly to any private entity that collects this stuff, its protections extend to the collection of personal biodata in the employer-employee context.

Just last year the Seventh Circuit held that a group of Ramp Agents at Midway Airport were required under the Railway Labor Act (“RLA”) to bring BIPA claims before an adjustment board, which required dismissal of their claims.  Miller, 926 F.3d at 906.  The Ramp Agents alleged that their employer, an airline, had scanned their fingerprints for timekeeping purposes without abiding by BIPA’s notice and consent provisions.  Id.  The RLA preempts state law.  It also requires that disputes about the interpretation of a collective bargaining agreement are resolved by an adjustment board—not before a judge.  Id.  For this reason, the Seventh Circuit held that an adjustment board needed to decide whether the Ramp Agent’s union had consented to the use and collection of biometric data (as it concerned an interpretation of the union’s bargaining agreement).  Id. at 903.

Which brings us to Crooms.  The case involved the same employer, the same union, the same collective bargaining agreement, and the same Illinois statute as Miller.  2020 U.S. Dist. LEXIS 84360, at *13.  The employer argued that plaintiffs’ claims fell squarely within the holding of Miller and had to be submitted to the adjustment board.  Id.  Additionally, the employer also argued that plaintiffs’ claims failed because they had twice agreed to arbitrate their claims—both as part of their employment agreement and also as part of a mediation agreement.  Id.

Regarding arbitration, the court held that one plaintiff had to pursue his claims on an individual, not class basis, with the AAA.  This was because his agreement to arbitrate was enforceable under the Federal Arbitration Act and he did not fall within the category of employees whose claims were preempted by the RLA.  Because the other plaintiffs were “transportation workers” as defined in the RLA, they were likewise barred from pursuing their claims as a putative class action in court and had to go before an adjustment board.  Id.

Those three plaintiffs in Crooms raised several arguments to avoid litigating before the adjustment board.  Id.  All were rejected by the court.  Plaintiffs asserted that they were basing their claims only for the period they were Ramp Agents with the airline, a position that was not governed by a collective bargaining agreement.  Id.  The court found this argument did not jive with the plain language of their complaint which sought to certify a class of “all workers”.  Id.  In any event, the court noted that a key issue for these three plaintiffs was whether their union “consented” as understood by BIPA to the collection of their biometric data.  Id.  BIPA’s plain language “requires an employer to obtain consent from an employee, either individually or from the employee’s ‘legally authorized representative,’” which includes labor unions.  However, “BIPA says nothing about obtaining consent a second time when an employee changes roles within the company (but remains an employee all the while).”  In any event, the court ruled, “the proper forum to hear that argument is an adjustment board,” not federal court.

So there it is.  Crooms is a big deal because as employers continue to compile the biometric data of their employees, challenges arising BIPA and other laws will continue.  In at least some instances, as shown by Crooms, plaintiffs will be precluded from having a court addressing their claims and will be instead forced into other dispute resolution mechanisms (adjustment board, binding arbitration, etc.).  Stay tuned.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 139

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About this Author

Kristin L. Bryan Litigation Attorney Squire Patton Boggs Cleveland, OH & New York, NY
Senior Associate

Kristin Bryan is a litigator experienced in the efficient resolution of contract, commercial and complex business disputes, including multidistrict litigation and putative class actions, in courts nationwide.

She has successfully represented Fortune 15 clients in high-stakes cases involving a wide range of subject matters.

As a natural extension of her experience litigating data privacy disputes, Kristin is also experienced in providing business-oriented privacy advice to a wide range of clients, with a particular focus on companies handling customers’ personal data. In this...

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