Illinois Biometric Privacy Claims Not Barred by Workers’ Compensation Act

In a unanimous decision filed on February 3, 2022, the Illinois Supreme Court held that statutory damages under the state’s biometric privacy law are not barred by the Illinois Workers’ Compensation Act. In so finding, the Court upheld the decision of an Illinois Appellate Court which found such a claim was not preempted by the Workers’ Compensation Act.

Enacted in 2008, Illinois’ Biometric Information Privacy Act (BIPA) provides rights and protections over a person’s biometric identifiers which are defined as: retina or iris scan, fingerprint, voiceprint, scan of hand, or face geometry. In addition to providing direction regarding retention of biometric identifiers, BIPA lays out prerequisites to a private entity engaging in their collection, including informing the subject of the collection, in writing, that such collection is taking place; the specific purpose and duration of the use or retention; and, a written release executed by the subject of the collection. A person aggrieved by a violation of BIPA may seek redress in a state circuit court to include money damages.

In the case before the Illinois Supreme Court, McDonald v. Symphony Bronzeville Park LLC, No. 126511, Marquita McDonald was an employee of Symphony Bronzeville working at one of its patient care facilities. The company required McDonald to scan her fingerprint as a means for it to authenticate McDonald and keep track of her time. In her BIPA lawsuit McDonald claimed she was never informed of the purpose or length of time her biometric identifiers were being stored, and she was not provided, nor did she sign, a release consenting to the storage of her biometric identifiers.

Symphony Bronzeville moved to dismiss the BIPA claim, arguing the exclusive remedy for accidental injuries occurring in the workplace was the Illinois Workers’ Compensation Act (820 ILCS 305), and that an employee has no common-law or statutory right to obtain damages from an employer for injuries sustained during the course of employment.

The Illinois Supreme Court held the Illinois Workers’ Compensation Act did not preempt McDonald’s BIPA claim. In so finding, the Court drew a distinction between the “personal and societal injuries” caused by BIPA violations and the types of injuries which are compensable under the Illinois Workers’ Compensation Act. The Workers’ Compensation Act contains “exclusivity provisions”, making the Act the exclusive means by which an employee can recover for a work-related injury. However, among the recognized exceptions to the exclusivity provision is when an injury is not compensable under the Workers’ Compensation Act.  In determining whether an injury would be compensable, the Court looked at whether the injury was a “harmful change in the human organism” Here, the Court concluded the privacy rights violation was not a psychological or physical injury and, therefore, was outside of the Workers’ Compensation Act. As a result, McDonald can continue to pursue her BIPA claim.


The Court’s decision in McDonald further reinforces the need for Illinois employers to pay careful attention to BIPA’s requirements. Failure to adhere to these statutory obligations can result in significant monetary penalties.


The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over 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.