Heyl Royster

Illinois Employer Update on the Biometric Information Privacy Act

November 7, 2023

This Illinois employment law update will provide a brief summary and analysis of two cases from February 2023, related to Illinois’ Biometric Information Privacy Act (BIPA). 740 ILCS 14/1 et seq.  White Castle System, Inc., clarifies when a cause of action accrues under BIPA; the second case, Tims v. Black Horse Carriers, Inc., clarifies which statute of limitations applies to claims that accrue under BIPA.

In Cothron v. White Castle System, Inc., the plaintiff filed a putative class action lawsuit on behalf of all employees employed by the defendant, alleging violations of BIPA. 2023 IL 128004, as modified on denial of reh'g (July 18, 2023). According to the plaintiff, defendant introduced fingerprint scanners shortly after her employment began in 2004, which plaintiff and other employees were required to use to access paystubs and defendant’s computer systems. Plaintiff claimed her consent was not contained to obtain this biometric data from the date BIPA became effective (in 2008) until 2018. Id. ¶¶ 4-6. Plaintiff argued that defendant therefore violated the Act through its unauthorized collection of biometric data for that period. Id. Defendant argued that: (1) plaintiff’s action accrued with the first unlawful scan of her biometric data in 2008; (2) BIPA may only be violated with an initial scan/collection of data; (3) subsequent fingerprint scans would not be separate violations of BIPA; and (4) therefore plaintiff’s claim was brought untimely. Id. ¶ 7. This question of when plaintiff’s action accrued was certified from the federal 7th Circuit Court of Appeals, who found both plaintiff’s and defendant’s interpretations of Illinois law reasonable, to the Illinois Supreme Court, so that they could weigh in. Id. ¶ 9.

The Illinois Supreme Court limited their analysis in this case to that narrow question and assumed for purposes of answering this question that defendant’s actions did indeed violate BIPA at some point. The Court sided with Plaintiff’s interpretation, holding that the plain language of the statute and other doctrines of statutory interpretation supported Plaintiff’s position. Id. ¶ 23. Further, the Court held that defendant’s position contradicted itself; if there was any violation of BIPA, defendant argued, it was in 2008. Id. However, plaintiff already was in their fingerprinting system at the time BIPA was passed in 2008. Therefore, the Court reasoned, defendant’s position that the Act was violated in 2008, where routine authentication scans were done, not separate collection scans, made no sense. Id. The Court ultimately concluded that plaintiff’s cause of action accrued with each scan of her fingerprints, and that therefore plaintiff’s action was not time-barred. Id.

In Tims v. Black Horse Carriers, Inc., plaintiff filed a class-action lawsuit against defendant, also claiming violations of BIPA. 2023 IL 127801. In this case, the defendant argued that plaintiff’s claim was barred by the statute of limitations, which defendant argued was a one-year statute of limitations which governs actions for violations of privacy rights. Id. ¶ 8. The lower courts held that plaintiff’s claims were at least partially governed by Illinois’ catch-all five-year statute of limitations. Id. ¶ 10. Defendant appealed, and the Illinois Supreme Court held that the five-year catch-all statute of limitations governed plaintiff’s claims. Id. ¶42. In so holding, the Court found that the one-year statute of limitations forwarded by defendant only covered privacy actions where publication was an element of the claim; for violations of BIPA, the Court held, publication of biometric data is not required to violate the Act. Since BIPA does not otherwise contain a statute of limitations period, the Court held the five-year catch-all statute of limitations was the proper statute of limitations to apply to BIPA claims.  Id. ¶32.

These recent clarifications to BIPA by the Illinois Supreme Court provide more clarity for causes of action under the Act, but are both unfavorable rulings for employers. If you have questions relating to the Act, please contact Heyl Royster’s Employment & Labor Practice Group.

© 2024 Heyl Royster. All Rights Reserved.