Today, the Illinois Supreme Court issued its long-awaited decision on whether the “exclusive remedy” provision of the Illinois Workers’ Compensation Act bars BIPA claims against Illinois employers. Unfortunately for employers, the Court ruled that workers’ compensation exclusivity does not bar BIPA claims against employers, thus leaving the floodgates open for further costly, and usually class action, BIPA lawsuits against Illinois employers.

Under the Illinois BIPA law, employers are liable for damages of $1,000 or $5,000 (when action found reckless) for each violation of the BIPA statute. A violation of BIPA occurs where an employer uses a biometric scanning device for timekeeping (or other purposes, such as facility entry) without first: (1) providing the employee with specific information about the use and storage of biometric information; and (2) receiving an informed written consent from the employee for use of the device.

While this ruling is very disappointing for Illinois employers, another extremely important BIPA case is pending before the Illinois Supreme Court. On December 20, 2021, the Seventh Circuit Court of Appeals referred a certified question to the Illinois Supreme Court which asks the Supreme Court to decide whether a violation occurs (claim accrues) only the first time an employee’s biometric information is scanned or each time an employee uses the scanner. Assuming the Illinois Supreme Court accepts the request to rule on the certified question, the ruling would make an enormous impact on employers’ potential liability exposure. Whether damages accrue each time an employee scans in and out (sometimes twice daily where employees scan in and out for meal breaks) or only at the time of the initial scan will decide whether damages for BIPA violations are manageable or colossal. Although the issue of the BIPA statute of limitations has not yet reached the Illinois Supreme Court, current appellate law has ruled that the BIPA limitation period is five years (except, ironically, where the information is sold in which case it is three years).

Now, more than ever, Illinois employers are well advised to audit their practices for compliance with BIPA and to reconsider whether any information or consents provided by their payroll company or other device vendor is adequate to satisfy BIPA – it usually is not. Note – if you are located outside of Illinois, you should determine if a BIPA statute has been enacted in your state as more and more states are adopting such laws.

If you have any questions, please feel free to contact our Illinois office at 630-377-1554.

Article prepared by James B. Sherman and Jennifer Adams Murphy