The Illinois Supreme Court recently agreed to hear an appeal of an Appellate Court’s decision addressing whether an employee’s claim for damages under Illinois’s Biometric Information Protection Act is preempted by the exclusivity provisions of the Illinois Workers’ Compensation Act (“IWCA”). Back in September, the Illinois Appellate Court for the First Judicial District held that employees’ BIPA claims were not preempted under the Illinois Workers’ Compensation (IWCA) and could go forward.

The BIPA requires companies that collect and use biometric information to establish a policy and obtain a written release prior to collecting such data. Under the BIPA, individuals may sue for violations and, if successful, can recover liquidated damages ranging from $1,000 (or actual damages, whichever is greater) for negligent violations to $5,000 for intentional or reckless violations — plus attorneys’ fees and costs.

Over the past few years there has been a significant number of lawsuits under the BIPA, particularly after the Illinois Supreme Court held in 2019, in Rosenbach v. Six Flags,  that individuals need not allege actual injury or adverse effect, beyond a violation of his/her rights under BIPA, in order to qualify as an “aggrieved” person and be entitled to seek liquidated damages, attorneys’ fees and costs, and injunctive relief under the Act. A key defense for employers defending BIPA lawsuits has been that the BIPA is preempted by the IWCA.

The plaintiff in Illinois Supreme Court’s most recent case alleged that that their employer violated BIPA by requiring that employees use a fingerprint time clock system without properly: (1) informing the employees in advance and in writing of the specific purpose and length of time for which their fingerprints were being collected, stored, and used; (2) providing a publicly available retention schedule and guidelines for permanently destroying the scanned fingerprints; and (3) obtaining a written release from the employees prior to the collection of their fingerprints.  The employer moved to dismiss the complaint based on several arguments, including the assertion that the plaintiff’s claims would be barred by the exclusivity provisions of the IWCA.  The trial court denied the motion the dismiss, but certified the question for appeal regarding whether the IWCA exclusivity provisions bar a claim for statutory damages under the BIPA.

In September of 2020, the Appellate Court emphasized that the IWCA generally provides the exclusive means by which an employee can recover against an employer for a work-related injury, however an employee can escape the exclusivity provisions of the IWCA if the employee establishes that the injury: 1) was not accidental, 2) did not arise from their employment, 3) was not received during the course of employment or 4) was not compensable under the IWCA.  Focusing on the fourth exception, the Appellate Court concluded that a BIPA claim limited to statutory damages is not an injury compensable under the IWCA, and thus the plaintiff’s claims qualified under the fourth exception and were not preempted by the IWCA.

The Appellate Court, relying on Rosenbach, highlighted that because actual harm is not required under the BIPA to maintain a statutory damages claim, it does not,

“[f]it within the purview of the Compensation Act, which is a remedial statute designed to provide financial protection for workers that have sustained an actual injury.”

The Illinois Supreme Court has now granted leave to appeal the Appellate Court’s ruling, addressing the issue of whether injuries resulting from BIPA claims fall under the scope of the IWCA. While there is no telling how the Supreme Court will ultimately rule, it certainly leaves open the possibility that the Court’s decision will help reign in the significant number of lawsuits, including putative class actions, filed under the BIPA.

If they have not already done so, companies should immediately take steps to comply with the statute. That is, they should review their time management, point of purchase, physical security, or other systems that obtain, use, or disclose biometric information (any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry used to identify an individual) against the requirements under the BIPA. In the event they find technical or procedural gaps in compliance – such as not providing written notice, obtaining a release from the subject of the biometric information, obtaining consent to provide biometric information to a third party, or maintaining a policy and guidelines for the retention and destruction of biometric information – they need to quickly remedy those gaps.  For additional information on complying with the BIPA, please see our BIPA FAQs.

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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix…

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix of laws governing privacy, security, and management of data. Mr. Gavejian is Co-Editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Mr. Gavejian’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Mr. Gavejian helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Mr. Gavejian assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Mr. Gavejian’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.