As readers of CPW know, the Illinois Biometric Information Privacy Act (“BIPA”) is a frequently litigated data privacy statute.  Given the potential business-ending consequences of a putative BIPA class action, it is also a frequently cited example as to why other states should not enact comprehensive privacy or biometric legislation with a broad private right of action.  Earlier this week an appellate panel in Illinois held that members of the collective bargaining unit surrendered their individual right to bargain with their employer about timekeeping procedures, even where those timekeeping procedures also included the collection and use of the employees’ biometric information and otherwise fell within the purview of BIPA.  Walton v. Roosevelt Univ., 2022 Ill. App. LEXIS 83 (Ill. Ct. App. Feb. 22, 2022).

In Walton, the Court determined that Plaintiffs and putative class members claims were preempted under the Federal Labor Relations Act.  Plaintiff had filed suit seeking damages from his employer under BIPA for its alleged collection, storage, use, and dissemination of his biometric data.  Plaintiff alleged that his employer collected and used his biometric data without complying with the Privacy Act’s informed consent requirements and without developing and following the required retention policies. Plaintiff also alleged that his employer disclosed his biometric data to a third-party payroll service without his consent.

The employer moved to dismiss, arguing Plaintiff’s claims were preempted.  An Illinois appellate panel agreed, holding that:

[Plaintiff] and his fellow unionized employees are not prohibited from pursuing redress for a violation of their right to biometric privacy—they are simply required to pursue those rights through the grievance procedures in their collective bargaining agreement rather than in state court in the first instance.  [Plaintiff] cannot bypass his union, his sole and exclusive bargaining agent, to demand that [his employer] deal with him directly on this issue. [Plaintiff] comes to the court attempting to represent a class of similarly situated employees over a workplace grievance, but that is a place for his union, not [Plaintiff] himself.

In sum, the Court held, “[f]ederal law prevents state courts from stepping in and usurping the bargained-for dispute resolution framework where the parties have elected to establish a working relationship that comes within the purview of the Labor Management Relations Act.”  As such, the Court ruled, “[BIPA] claims asserted by bargaining unit employees covered by a collective bargaining agreement are preempted under federal law.”  The case was remanded for proceedings consistent with this ruling.

For more on this and BIPA developments, stay tuned.  CPW will be there to keep you in the loop.