In 2023, we helped US employers overcome a host of new challenges across the employment law landscape. Many companies started the year with difficult cost-cutting decisions and hybrid work challenges. More recently, employers faced challenges around intense political discourse boiling over in the workplace. We’ve worked hard to keep our clients ahead of the curve on these
Illinois employers, do you utilize any workforce monitoring or security measures, such as time clocks, that involve individuals’:
- Retina or iris scans
- Scans of hand or face geometry
- Biometric information (information based on the above that is used by the company to identify an individual)
If so, read ahead because the Illinois Supreme Court just decided that doing so, without strict compliance with the Illinois Biometric Information Privacy Act (BIPA), could be a multi-billion dollar mistake.
In Cothron v. White Castle System, Inc. (issued February 17, 2023), the Court held that a separate BIPA claim accrues each time a private entity scans or transmits an individual’s biometric identifier or information in violation of section 15(b) or 15(d) of BIPA–not just the first time. Employers subject to BIPA now have no margin of error, because noncompliance with sections 15(b) or 15(d) of BIPA could mean cost-prohibitive–even ruinous–damages for the company.Continue Reading BIPA Liability in the Billions? Illinois Employers Beware: Claims Accrue with EACH Separate Scan or Transmission
With special thanks to our data privacy colleague Helena Engfeldt for her contributions.
On February 17, 2022, California Senator Bob Wieckowski introduced a bill (SB 1189) that would add protections for biometric information and establish a private right of action permitting individuals to allege a violation of the law and bring a civil action. The legislation is similar to the Biometric Information Privacy Act in Illinois (BIPA) which is creating expensive headaches for Illinois employers. (Read about the latest BIPA developments here.) If enacted, the law will cover all employers that use biometric time-keeping systems in California. Many employers would have to navigate the law alongside other California privacy laws such as the California Consumer Privacy Act (CCPA).
Here’s what employers need to know about SB 1189:
The bill would apply to any private entity regardless of size. “Private entity” is defined as an individual, partnership, corporation, limited liability company, association, or similar group, however organized.
How does the bill define biometric information?
- A person’s physiological, biological, or behavioral characteristics, including information pertaining to an individual’s deoxyribonucleic acid (DNA), that can be used or is intended to be used, singly or in combination with each other or with other identifying data, to establish individual identity;
- It includes, but is not limited to, imagery of the iris, retina, fingerprint, face, hand, palm, vein patterns, and voice recordings, from which an identifier template, such as a faceprint, a minutiae template, or a voiceprint, can be extracted, and keystroke patterns or rhythms, gait patterns or rhythms, and sleep, health, or exercise data that contain identifying information.
As detailed in prior posts, in January, the Illinois Supreme Court held that a plaintiff need not plead an actual injury beyond a per se statutory violation to state a claim for statutory liquidated damages or injunctive relief under the Illinois Biometric Information Privacy Act (BIPA). While recent decisions applying BIPA have been largely Illinois-based, the Ninth Circuit recently applied BIPA in Patel v. Facebook to affirm a lower court’s ruling that plaintiffs in the ongoing Facebook BIPA class action alleged a concrete injury-in-fact to confer Article III standing and that the class was properly certified.
The Ninth Circuit is the first federal circuit court to conclude that a plaintiff alleging a BIPA violation has standing for purposes of Article III of the US Constitution. The ruling makes it easier for plaintiffs to certify BIPA class actions, within and outside of Illinois.
Continue Reading The Ninth Circuit Clears The Way For BIPA Class Actions
California is known as one of the most progressive, pro-employee states in the country. But if the last several months are any indication, Illinois is quickly catching up.
Here’s a quick overview of what’s happening in the prairie state:
Illinois Wage Payment and Collection Act
What’s New? As of January 1, 2019, employers must reimburse employees for all “necessary” expenses. So what’s a necessary expense? Anything required of the employee in the discharge of his/her employment duties that “inure to the primary benefit of the employer.” Computers, cell phones, uniforms, etc. may all constitute “necessary” expenses that the employer is required to reimburse.
Takeaway: Employers should review their policies, job descriptions, and third party contracts to determine which positions/roles may result in necessary expenditures.Continue Reading Is Illinois The New California For Employers?
On January 25, 2019, the Illinois Supreme Court issued a highly anticipated decision, Rosenbach v. Six Flags Entertainment Corporate et al., extending the reach of the Illinois Biometric Information Privacy Act (BIPA). BIPA is an Illinois privacy law that regulates the collection, use, and retention of biometric data such as fingerprints, face, and eye scans by imposing procedural requirements on corporations that collect the data. Though not an employment case, the decision impacts employers using biometric time-keeping systems in Illinois.
Continue Reading Unanimous Case For Class Actions: Illinois Supreme Court Finds BIPA Violations Actionable Even Without “Actual Injury”
In October, we discussed one of the hottest trending class-action claims: the Illinois Biometric Privacy Act (BIPA). In our alert, we noted that it was not clear whether a plaintiff would need to show a concrete injury to be entitled to damages or whether a mere statutory violation would be sufficient to warrant damages.
On November 21, the Second Circuit Court of Appeals issued a decision on this very issue.Continue Reading UPDATE Regarding The Illinois’ Biometric Information Privacy Act
Attention employers using biometric identification technology, such as retina scans, fingerprint identification and facial recognition technology:
A number of corporations in Illinois, including internet and video game companies, food product manufacturers, gas stations, and restaurant chains, have been sued in the past few months for alleged BIPA violations.