On Thursday, the Illinois Supreme Court unanimously ruled in McDonald v. Symphony Bronzeville Park LLC that the exclusivity provisions of the state’s workers’ compensation statute do not preclude liquidated damages claims under the Biometric Information Privacy Act.  The decision narrows the defenses available to employers facing employment-related BIPA claims.

Illinois’s Workers’ Compensation Act generally provides the exclusive means by which an employee can recover against an employer for a work-related injury and requires such claims to be adjudicated before the Illinois Workers’ Compensation Commission, subject to several exceptions.  One of those exceptions is for injuries that are not compensable under the Workers’ Compensation Act.  At issue in McDonald was whether an alleged employment-based BIPA violation—here, the alleged use of a fingerprint-based timekeeping system without the required disclosures or consent—was the type of injury covered by the Workers’ Compensation Act.

The Illinois Supreme Court held that it is not.  It reasoned that the “personal and societal injuries caused by violating the Privacy Act’s prophylactic requirements are different in nature and scope from the physical and psychological work injuries that are compensable under the Compensation Act.”  However, in a special concurrence, Justice Burke opined that if a plaintiff asserted damages for mental anguish stemming from the BIPA violation, such a claim would be subject to the workers’ compensation scheme.  As a result, while pure claims for statutory damages will be allowed to proceed in court, companies facing employment-related BIPA claims should carefully assess the type of injury alleged in the complaint to determine whether the Workers’ Compensation Act’s exclusivity provisions might apply notwithstanding McDonald.

For other BIPA coverage, see previous Inside Privacy posts on statute of limitations and Article III standing decisions.

Tags: Biometric, BIPA, Data Privacy, Litigation
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Photo of Amy Heath Amy Heath

Amy Heath focuses on complex commercial litigation and class actions. She has handled matters involving contract, privacy, consumer protection, fraud, unfair competition, and intellectual property claims. She also has experience with internal investigations. Before practicing law, Amy served as an intelligence analyst.

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Photo of Eric Bosset Eric Bosset

Eric Bosset is a partner whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions…

Eric Bosset is a partner whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions, MDL proceedings, and other multi-party lawsuits. His trial victories include a jury verdict in an employment class action lawsuit that The National Law Journal ranked among the 25 most notable defense verdicts of the year.

Privacy and Consumer Protection

Eric was named “Most Valuable Player” in Privacy & Consumer Protection by Law360. He has an extensive practice representing Internet service providers, publishers and advertisers in class action litigation involving claims of unauthorized collection and disclosure of personally identifiable information (“PII”). He has successfully represented Microsoft, AOL, CBS, McDonald’s, Mazda, the Indianapolis Colts, and other companies in obtaining the dismissals of putative class action lawsuits that asserted federal law claims under the Electronic Communications Privacy Act (“ECPA”), Computer Fraud and Abuse Act (“CFAA”), and Video Privacy Protection Act (“VPPA”), as well as state law claims under the Illinois Biometric Information Privacy Act (“BIPA”) and for unfair practices, trespass, and invasion of privacy.

Eric also represents companies in connection with matters arising under the Fair Credit Reporting Act (“FCRA”), Fair and Accurate Credit Transaction Act (“FACTA”), Telephone Consumer Protection Act (“TCPA”), and other consumer protection statutes.

Employment and ERISA

Eric has extensive experience defending companies in individual and class action litigation brought under federal and state laws concerning discrimination, retaliation, whistleblowing, wage and hour disputes, and wrongful termination, as well as in class action litigation involving the Employee Retirement Income Security Act (“ERISA”). Eric has the rare distinction of having tried and won a jury verdict in a class action lawsuit alleging “pattern or practice” discrimination on the basis of age in connection with a corporate reduction in force. Bush, et al. v. Deere & Company (C.D. Ill.). He also secured the reversal on appeal of a class certification order in a “stock drop” lawsuit that claimed breaches of fiduciary duty in the administration of a company retirement savings plan. In re Schering Plough Corporation ERISA Litig., 589 F.3d 585 (3d Cir. 2009). Eric also represents clients in EEOC investigations.

Financial and Fintech

Eric’s practice includes the representation of financial and fintech companies on a broad array of civil litigation, arbitration, and regulatory enforcement matters relating to financial products and services, including matters for Wells Fargo Bank, JPMorgan Chase, Synchrony Bank, Envestnet, Yodlee, and MidFirst Bank.

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