For the past year, many BIPA claims have been stayed pending yesterday’s Illinois Supreme Court decision in McDonald v. Symphony Bronzeville Park, LLC regarding whether employment-based BIPA claims are covered by Illinois’ Workers’ Compensation Act (IWCA), and thus cannot be brought in court. Yesterday’s opinion affirmed the Illinois Appellate Court’s finding (as well as the finding of every other Illinois lower court to consider the issue), holding that BIPA claims are not preempted by the IWCA. In sum, the McDonald opinion held that BIPA injuries are not the types of injuries covered by workers’ compensation. The McDonald opinion defines a BIPA injury as consisting of the “loss of the ability to maintain privacy rights” and also refers to a BIPA injury as a “lost opportunity to say no by withholding consent.” These BIPA injuries were called “personal and societal” and thus very different from the “physical and psychological” injuries covered by the IWCA.
McDonald rejected claims from employers and associations that finding BIPA claims outside of the IWCA could lead to disastrous damages and a patchwork of case law that would be difficult to follow. The Court noted that BIPA subjects employers to “substantial potential liability” regardless of whether actual damages exist, and without a showing of any injury beyond BIPA non-compliance. The Court then “punted” on these issues, noting that it is up to the Illinois Legislature to consider treating BIPA injuries differently. As seen from the BIPA Legislative Reform update below, at least some members of the Illinois Legislature have introduced BIPA amendments aimed at reforming BIPA, including amendments that would effectively overturn the McDonald decision.
What McDonald means for you: As we have stressed in the past, there are still significant and important issues for our employer and non-employer clients that will be heard by the Illinois Supreme Court this year, including the appropriate statute of limitations for BIPA claims (Tims v. Black Horse Carriers); and BIPA claim accrual/per use damages (Cothron v. White Castle). We are hopeful that these appeals and others pending in the Illinois appellate courts will lead to a more defense-favorable BIPA litigation environment.
BIPA Legislative Reform Update
With the Illinois Legislature back to work in January 2022, efforts to reform BIPA’s text continue. We have prepared a document tracking the six currently pending BIPA amendments. Two of the bills are bipartisan, indicating growing recognition among Illinois politicians that BIPA reform is much needed.
Although BIPA reform has proven elusive, Illinois Senate Bill 3782 is the most likely to pass in this Legislative session. SB3782 would allow collection of biometric data for a security purpose, including (i) preventing retail theft, fraud or other misappropriation of something of value; (ii) protecting or controlling access to property; (iii) protecting persons from harm, and (iv) assisting a law enforcement investigation.
The remaining bills seek timekeeping-related exemptions and provisions that address single accrual of BIPA claims (HB4692/SB3874); exemptions for healthcare employers and health care workers (HB469/SB3413); and amendments to BIPA and the Illinois Workers’ Compensation Act to provide that BIPA claims fall within the IWCA (SB5396).