Allison J. Hartnett

Allison J. Hartnett Associate

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ILLINOIS COURTS SEEING RAPID RISE OF BIOMETRIC LAWSUITS BY EMPLOYEES

An Illinois law enacted in 2008 is gaining greater attention due to a large number of recently filed class action lawsuits. Since the beginning of the year alone, thirty-four (34) suits have been filed against employers in Illinois under the stringent Biometric Information Privacy Act (“BIPA”).

BIPA was enacted in 2008 in order to regulate the consent, notice and disclosure procedures that private entities must follow when collecting, storing or using employees’ biometric information. In the workplace this most often comes up through the use of fingerprints or handprints used by employees to clock in and out of work. BIPA requires employers to inform persons in writing about the specific purposes and length of time for which their biometric information will be collected, used or stored. Accordingly, no employer may collect biometric information without first receiving a written release from their employees whose biometric information is being collected. Further, the Illinois statute requires a written schedule and guidelines for the retention and destruction of the biometric information to be made public. Finally, BIPA mandates consent and notice procedures that employers must follow before disclosing someone’s biometric information to a third party, i.e. vendors collecting the hours worked of employees.

In nearly all of the recently filed cases, the plaintiffs are employees who have alleged that their employers used the fingerprint/handprint operated machines to collect the employees’ work hours. While recording employees’ hours worked using such a method is allowed, the plaintiffs allege the employers failed to inform them about their policies for use, storage and ultimate destruction of the fingerprint data and/or failed to obtain their written consent before collecting, using or storing the biometric information.  In one recent case, a company paid out $1.5 million in a suit involving its use of fingerprint scanners in its tanning salons.

While cases under BIPA are relatively new and the extent of potential recoveries is not yet clear, the statute provides that those alleging violations of the statute may collect the greater of $1,000 or actual damages for each violation negligently committed, and the greater of $5,000 or actual damages for each violation recklessly or intentionally committed. Plaintiffs also may collect attorneys’ fees and costs, which poses significant financial exposure for employers..

It is unclear as to why cases under BIPA are rising in popularity; however, one theory is that the vendors selling the technology to employers are failing to discuss the legal obligations that go along with it and there is a desire to quickly get the systems into place. In addition, Illinois is the only state that allows individuals to bring this type of suit and recover attorneys’ fees. Whatever the case, it is important for employers to be aware of BIPA and provide the proper information prior to the implementation of such technology in the workplace.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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