Workers' comp doesn't preclude damages under Illinois biometric law

A gavel and a block is pictured at the George Glazer Gallery antique store in this illustration picture taken in Manhattan, New York City
A gavel and a block is pictured at the George Glazer Gallery antique store in this illustration picture taken in Manhattan, New York City, August 18, 2020. REUTERS/Andrew Kelly
  • Workers' comp not designed to cover privacy violations
  • Nursing home was backed by biz groups seeking to curb class actions

(Reuters) - The Illinois Supreme Court on Thursday rejected claims that employees cannot seek money damages when they sue under the state's unique biometric privacy law because they are already covered by workers' compensation, in a loss for businesses facing an increasing number of claims under the law.

The seven-member court unanimously held that violations of the Biometric Information Privacy Act (BIPA) involve an invasion of employees' privacy and not the kind of physical and psychological injuries that workers' compensation was designed to cover.

The number of lawsuits filed under BIPA has skyrocketed in recent years and litigation has yielded a series of multimillion-dollar judgments and settlements. Many companies that operate nationwide have a large presence in Illinois.

Thursday's ruling came in a proposed class action accusing nursing home operator Symphony Bronzeville Park LLC of using employees' fingerprints for a timekeeping system without obtaining their consent.

Bronzeville was backed by amicus briefs from the Restaurant Law Center and a coalition of Illinois businesses, which said a ruling against the company would expose employers across the state to lawsuits that could lead to financial ruin.

But the court on Thursday said concerns about the scope of BIPA were best left to the state legislature, and not the courts.

Lawyers at Seyfarth Shaw who represent Bronzeville did not immediately respond to a request for comment. Nor did lawyers at Edelson who represent the named plaintiff in the case.

The Illinois state law allows companies to collect, store and use biometric data such as fingerprints and facial scans only after they provide notice to workers or consumers and obtain their consent to do so.

The law provides for damages of $1,000 per violation and $5,000 per willful violation, and cases often involve hundreds or thousands of workers.

The Illinois Supreme Court said the ability of plaintiffs to seek damages in BIPA cases was a key aspect of enforcing the law, and that state lawmakers would not have included money damages in the legislation if workers' compensation was meant to cover BIPA claims.

The case is McDonald v. Symphony Bronzeville Park LLC, Illinois Supreme Court, No. 126511.

For McDonald: Ryan Andrews and J. Eli Wade-Scott of Edelson

For Symphony Bronzeville: Richard McArdle and Alexandra Davidson of Seyfarth Shaw

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at