Biometric Privacy Legal Landscape Case Law Developments

Q1 Biometric Privacy Litigation Update

Amanda M. Noonan |

In the first quarter of 2022, there have already been significant legal developments in the biometric technology space. Most notably, the Illinois Supreme Court—which has actively taken Illinois Biometric Privacy Act (“BIPA”) cases amid the surge of such class action litigation in federal and state courts—issued several consequential BIPA opinions this year. Though 2022’s most critical BIPA decisions are likely still on the horizon.

BIPA Claims Not Barred by the Illinois Workers’ Compensation Law

On February 3, 2022, the Illinois Supreme Court held the Workers’ Compensation Act does not preempt statutory damage claims under BIPA in a long-awaited decision affirming that employee-related BIPA claims may remain in Illinois courts. McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511.

The McDonald Court held claims for liquidated damages for collection of biometric data in violation of BIPA do not qualify as a workplace injury that occurred on the job—such that it would be subject to the Workers’ Compensation Act. A significant number of BIPA suits by employees had been paused pending the Court’s preemption ruling. Those cases are now set to proceed. The ruling also emphasizes the need for companies using biometric information in the employment context to put in place a compliance program meeting BIPA requirements or risk significant liability for violations.

Illinois Supreme Court: Claim Accrual / Statute of Limitations Decisions Forthcoming

While McDonald decided a significant issue impacting employment-related BIPA claims, also on the Illinois Supreme Court’s docket are critical cases implicating claim accrual and statute of limitations questions that will dramatically impact BIPA cases of all kinds.

Significantly, in Cothron v. White Castle Systems, Inc., on a certified question from the Seventh Circuit, the Illinois Supreme Court is set to decide whether a BIPA violation accrues only upon the first collection of an individual’s biometric identifiers or each time a biometric information is scanned. This upcoming decision may have massive implications under the statute, which authorizes damages “per violation.” In yet another forthcoming decision, the Illinois Supreme Court in Tims v. Black Horse Carriers, Inc., will provide definitive guidance to the hotly contested and open issue of the applicable statutes of limitation period for BIPA claims.

The Illinois Supreme Court has not hesitated to take up and decide hot-button BIPA issues; it is poised to continue to alter the BIPA landscape in 2022.