Federal Court Says Action under Illinois Biometric Information Privacy Act is Not Barred by Exclusivity
In an interesting case that illustrates the tension between some of the recent technological “advances” that purportedly streamline traditional workplace practices, a federal district court yesterday held that a plaintiff’s putative class action against his employer alleging its use of a fingerprint timekeeping system violated the Illinois Biometric Information Privacy Act (“BIPA”) was not barred by the exclusive remedy provisions of the state’s Workers’ Compensation Act [Treadwell v. Power Solutions Int’l, 2019 U.S. Dist. LEXIS 215467 (N.D. Ill., Dec. 16, 2019]. Observing that the plaintiff had not alleged physical injury or even mental anguish, the federal court observed that even if he had, plaintiff might be able to prove at trial that the employer acted with design or specific intent in unlawfully operating its timekeeping system and allegedly injuring him. That would be sufficient to avoid preemption. Moreover, the court said it was likely the Illinois Supreme Court would find plaintiff’s injuries were not the type of injury that categorically fit within the purview of the Act and thus, they were not “compensable.” Since they weren’t compensable, there could be no preemption.
Background
Plaintiff had been hired by the employer in April 2018 to work as a production assembler and, at the time of a motion to dismiss hearing, was still employed in that role. Plaintiff alleged that when the employer hired its employees, it required the employees to scan their fingerprints into a database operated by NOVAtime Technology, Inc. (“NOVAtime”), a company that provides equipment to track employees’ work hours. Plaintiff was required to scan his fingerprints each time he began and ended his workday so that the employer could track his time.
Plaintiff claimed he had been injured by the employer’s interfering with his right to control his biometric data, denying him compensation for the retention and use of his biometric identifier, improperly disclosing his biometric identifier to third parties, including NOVAtime, and failing to provide him information regarding his biometric data to which he was entitled under BIPA. Specifically, plaintiff did not allege mental anguish as an injury.
BIPA imposes certain restrictions on how private entities like plaintiff’s employer collect, retain, use, disclose, and destroy “biometric identifiers” and “biometric information” [see generally 740 ILCS 14/1 et seq.]. BIPA defines “biometric identifier” so as to include an individual’s fingerprints [740 ILCS 14/10]. The employer moved to dismiss plaintiff’s amended complaint, contending, inter alia, that claims for monetary damages under BIPA are preempted by the exclusive remedy provision in the Illinois Workers’ Compensation Act (“IWCA”).
Avoiding Exclusivity
The court observed that generally speaking, in order to escape the exclusive remedy provision’s preemptive effect, an employee must ultimately prove that his/her injury:
- was not accidental;
- Did not arise from his or her employment;
- Was not received during the course of employment; or
- Is not compensable under the IWCA.
The court quickly agreed that plaintiff could not be aided by the second or third exception. As to the first, however, plaintiff had sufficiently pled that the employer’s actions in establishing the timekeeping system and other mechanisms were intentional on the part of the employer. Thus, plaintiff could, if all allegations were true, show that the injuries were not accidental.
The court added that its examination of Illinois law convinced it that the damages alleged were not the sort contemplated to be compensable under the IWCA. The court added that If the Illinois Supreme Court were to hold otherwise, such a ruling would be a “novel development in interpreting and applying the IWCA.” Unfortunately for the employer, said the court, sitting in diversity jurisdiction, the court was required to take state law as it is rather than predicting novel developments.