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Illinois Supreme Court rules that Workers’ Compensation Act does not preempt BIPA claims

By Koga Ndikum-Moffor and Jennifer Dunn - Franczek P.C.

February 14, 2022

In a February 3, 2022 decision in Marquita McDonald v. Symphony Bronzeville Park LLC, the Illinois Supreme Court ruled that employee claims for damages for violations of their statutory privacy rights under the Illinois Biometric Privacy Act (BIPA) are not barred by the Workers’ Compensation Act.

The lawsuit at the center of the Court’s ruling was originally filed by Marquita McDonald, who alleged that her employer, Symphony Bronzeville, a nursing home operator, required her to “check-in” with her fingerprints as part of its employee timekeeping system. McDonald argued that the fingerprint timekeeping system violated her privacy rights under BIPA because she was never provided with nor signed a release consenting to the storage of her biometric information, and had never been informed of the purposes or length of time that her biometric information would be stored.  

Enacted in 2008, BIPA requires that private entities like Bronzeville inform individuals in writing regarding the collection, disclosure, and destruction of their biometric information. BIPA also requires that private entities obtain a signed written release from individuals before collecting their biometric information. The statute defines biometric information as “any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual.” Notably, BIPA provides for private rights of action in circuit court for violations of its provisions that allow prevailing parties to recover, in part, money and reasonable attorneys’ fees and costs.

Bronzeville argued that despite BIPA’s plain language providing for a private right of action in circuit court, the Workers’ Compensation Act precluded McDonald’s lawsuit because the injury she allegedly suffered occurred in the course of her employment. Bronzeville relied on the Workers’ Compensation Act’s exclusivity provisions, which make clear that its statutory remedies serve as an employee’s exclusive remedy if he, she or they sustain a compensable injury and constitute the exclusive means by which an employee can recover against an employer for a work-related injury.

The court in McDonald disagreed, holding that the “personal and societal injuries” caused by violating BIPA, including an individual’s loss of the ability to maintain her privacy rights, are different in nature and scope from the physical and psychological work injuries that are compensable under the Workers’ Compensation Act. The court also relied on BIPA’s plain language to support its holding, finding that the statutory reference to its application in the employment context was further evidence that the legislature did not intend for BIPA claims to be adjudicated under the Workers’ Compensation Act.

Bronzeville and the amici supporting its position argued that the “proverbial litigation floodgates” will open if workplace injuries can be “cleverly characterized” to evade the exclusivity provisions of the Workers’ Compensation Act—as McDonald had, in fact, done when she amended her complaint to remove any allegation that she suffered mental anguish due to her employer’s violation of her privacy rights. While recognizing the substantial consequences intended as a result of BIPA violations, the Court concluded that whether a different balance should be struck under BIPA given the category of injury is a question more appropriately addressed by the General Assembly.

Stay tuned here for additional updates on BIPA in the employment context.

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