The Illinois Workers’ Compensation Act (IWCA) does not bar claims for statutory damages under the state’s Biometric Information Privacy Act (BIPA), the Illinois Supreme Court unanimously ruled in a Feb. 3 opinion that could leave employers more vulnerable to a wave of privacy lawsuits.
In McDonald v. Symphony Bronzeville Park, the seven-member court looked at a proposed putative class action suit where the plaintiff alleged her former employer negligently failed to obtain written permission before collecting, using, and storing employees’ biometric identifiers and biometric information in violation of BIPA.
BIPA, enacted in 2008, mandates that private entities inform an individual in writing that their biometric identifier or biometric information is being collected or stored; share the specific purpose of why they’re collecting or using the biometric identifier or biometric information; and share the length of term for which the biometric identifier or biometric information will be collected and stored.
Biometric identifiers and biometric information are used as a timekeeping system by some Illinois employers.
Marquita McDonald, the plaintiff in the case, sought liquidated damages of $1,000 per violation for each negligent violation plus reasonable attorneys’ fees and costs as according to Section 20 of the BIPA. The Act states, “[a]ny person aggrieved by a violation of this Act shall have a right of action in a [s]tate circuit court or as a supplemental claim in federal district court against an offending party.”
Bronzeville, a nursing home operator, sought to dismiss McDonald’s suit by arguing that the alleged claims were barred by the exclusive remedy provisions of the state’s workers’ compensation law. Bronzeville’s motion to dismiss was unsuccessful at the circuit court and appellate court levels.
Bronzeville argued that the IWCA prohibits McDonald’s class action from reaching the circuit court because the “alleged injury occurred in the course of her employment and must therefore be adjudicated before the Illinois Workers’ Compensation Commission pursuant to the Compensation.”
McDonald’s countered that no injury occurred that would be considered compensable under the IWCA. In McDonald’s initial 2017 suit, she alleged that she suffered mental health anguish as a result of the Privacy Act violations but in a 2019 first-amended complaint withdrew those allegations because they were “unnecessary to her recovery on her [Privacy Act] claim.”
“Thank goodness that whoever filed that initial lawsuit redacted or withdrew those claims and once that occurred it became pretty clear cut that this was never going to be a workers’ compensation case,” said Chicago attorney Matthew J. Belcher.
McDonald said that if the Illinois General Assembly had intended for the BIPA claims to fall under the provisions of the IWCA, it would have said so in the language of the Act.
The court relied on this argument in ruling that McDonald may pursue her BIPA claims in an action in the circuit court rather than through the Illinois Workers’ Compensation Commission.
The court’s ruling wasn’t as telling as why it took the case in the first place, Belcher said.
“There are occasions where one district will conclude that the Privacy Act is excluded by the Workers’ Compensation Act and then you would have two different sets of laws coming up the Supreme Court,” Belcher said. “A lot of times people wonder why would the Supreme Court take the case just to affirm it? The answer is probably because the Supreme Court wanted to make that the law of the state of Illinois.”
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