The Next Employment Class Action Lawsuit That Will Blindside You

by BakerHostetler
Contact

Little-known Illinois statute now a source of class claims against employers

Do any of your office systems involve fingerprint scans or facial recognition? If so, and if you have any Illinois business operations, you may soon become a target of the latest round of employment class actions.

In 2008, Illinois passed the Biometric Information Privacy Act (referred to, when people are aware of it, as BIPA). The statute is codified at 740 ILCS 14/1, and a copy can be found here. We say “when people are aware of it” because the statute has merited little attention until now. A recent search engine request using that acronym came up with answers such as a line of home care products, a Namibian government agency and a kind of Korean lute, but there was only one reference to the obscure statute. It is poised, however, to take on increasing importance because a spate of suits under the act are now underway and catching numerous businesses off guard.

BIPA purports to regulate businesses’ use of biometric data. It was passed in the wake of a controversy involving the failure of a company that sought to link a customer’s banking and other consumer information through the use of a fingerprint device. Curiously, although the use of such devices was in its infancy at best, the statute contains a finding that “[a]n overwhelming majority of members of the public are weary of the use of biometrics when such information is tied to finances and other personal information.” Five years later, Apple introduced Touch ID as part of the then-new iPhone 5S, and suddenly such devices came into everyday (and for many of us multiple times a day) use. Face recognition technology is also becoming increasingly common, including in video games as well as business applications. The reliability and methodology used by these kinds of systems have evolved rapidly and are now far beyond what was available when the statute was passed.

BIPA itself defines biometric data based on 2008 technology, which is much older than it sounds given the pace of development in this area. Under the statute, biometric data includes such things as a “retina or iris scan, voiceprint, or scan of hand or face geometry,” subject to multiple exceptions such as signatures, photographs, or basic descriptive data such as weight, height, eye color or tattoos. It also excludes its use in a wide array of patient healthcare settings. Where the statute does apply, it has numerous requirements that include:

  1. Informing users of its use and purpose and obtaining written consent.
  2. Limiting its dissemination or sale without the subject’s consent.
  3. Exercising reasonable care over its storage.
  4. Developing and following a data retention policy requiring destruction of the data within a specified time period.

Significantly, BIPA provides for damages of $1,000 or actual damages (whichever is greater) for negligent violations, and $5,000 or actual damages (whichever is greater) for reckless or intentional violations. These are in addition to reasonable attorney fees, costs, expenses and injunctive relief. The availability of such damages is now fueling a wave of BIPA cases in Cook County (Chicago), Illinois. In the past two months alone, more than two dozen class action suits have been filed against a host of entities that include retailers, healthcare, restaurants and manufacturers, mostly for using fingerprint recognition software as part of their timekeeping processes. Other businesses have been sued, again in class actions, for collecting data such as smartphone pictures or utilizing fingerprinting technology for admission to events or places, day care security, and similar uses. We describe the specifics of the statute more fully here.

It is not clear where this trend will go. Much of the technology today is far more nuanced and operates very differently than what the drafters of BIPA likely intended when they wrote the statute. Until this year, there were few BIPA cases, and courts have had little opportunity to opine on when, where or how the statute might operate, or what circumstances might call for relief. Irrespective of these issues, however, any employer with Illinois operations should be reviewing its use of any arguable type of biometric data and considering adopting BIPA-compliant policies to avoid being a bleeding-edge defendant in this type of litigation. But it likely will be found to apply to technologies less fanciful than, say, the use of retinal scanners in movies like Tom Cruise’s 2002 Minority Report or the 1983 James Bond movie Never Say Never Again.

The bottom line: Employers with Illinois operations should review their use of fingerprint or facial recognition technology and consider BIPA compliance to avoid what would likely be very expensive litigation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.