The Illinois Supreme Court unanimously ruled that the exclusivity provisions of the Workers’ Compensation Act do not bar a claim for statutory damages under the Biometric Information Privacy Act (BIPA). In so doing, the Court has further opened the floodgates for BIPA claims and damages.

The plaintiff in the case, an employee at a Symcare Healthcare LLC company, claimed that she and other potential class members working for affiliated healthcare facilities were required to use a biometric information system to scan fingerprints and authenticate identities as well as track time. The plaintiff alleged that she was never provided with, nor did she sign, a release consenting to the storage of her biometric information. Further, she never received notice stating the length of time her biometric information would be stored. Accordingly, the plaintiff alleged that the defendants violated various statutory requirements under BIPA.

Defendants filed a motion to dismiss the class action complaint, asserting that the alleged claims were barred by the exclusive remedy provisions of the Workers’ Compensation Act on the grounds that the Act is the exclusive remedy for accidental injuries in the workplace. Defendants further argued that an employee has no common-law or statutory right to recover civil damages from an employer for injuries incurred in the course of employment. The issue ultimately reached the Illinois Supreme Court for certification.

The Illinois Supreme Court examined the Act and found that the type of injuries the Act aims to protect — injuries corresponding to death or to specific body parts — are different from the personal and social injuries caused by violating BIPA’s requirements. As such, the Court concluded that the plaintiff’s loss of her privacy rights was not a psychological or physical injury that is compensable under the Act. The Court affirmed the appellate court’s ruling that “the exclusivity provisions of the Compensation Act do not bar a claim for statutory, liquidated damages, where an employer is alleged to have violated an employee’s statutory privacy rights under [BIPA], as such a claim is simply not compensable under the Compensation Act.”

Takeaway

This decision unfortunately forecloses what businesses hoped would be a defense to BIPA claims. The Illinois Supreme Court’s ruling is consistent with previous BIPA-related rulings that have allowed plaintiffs to recover hefty sums.

BIPA currently allows plaintiffs to recover $1,000 for each negligent violation or $5,000 for each intentional or reckless violation, and a claim accrues each time biometric information is gathered. Although those damages are discretionary, three dissenting Illinois Supreme Court Justices in a prior decision questioned whether the exorbitant damages will “destroy” defendant businesses. For assistance, our firm has written an alert on the enormity of this specific issue, which was reflected in the $228 million judgment against BNSF in Rogers v. BNSF Ry. Co., N.D. Ill, No. 19-cv-03083. Importantly, there may be some light at the end of the tunnel. A new trial is scheduled for the BNSF case because jury members were not instructed that the penalties per violation are discretionary and not mandatory. The new trial will only affect the amount of damages that will be awarded to plaintiffs in the matter. Either the dissenting justices’ concerns about bankrupting businesses will be heard, resulting in reduced damages, or we will see the cementing of grossly punitive measures being assessed on employers for these violations.

Illinois employers that collect biometric information should consider examining or reexamining their BIPA-related policies and written releases to ensure they comply with all of BIPA’s statutory requirements. Fox Rothschild is prepared to assist with such a review.

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Read the Previous Installments:

A Year in Review for Illinois Employers: Obligations You May Have Missed

Illinois Employers Must Act to Comply With New Equitable Employment Laws

The Future of Restrictive Covenants in Illinois

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