Illinois: Each BIPA Violation is a Separate Claim

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APPLIES TO

All Employers with Employees in IL

EFFECTIVE

February 17, 2023

  

QUESTIONS?

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Quick Look

  • Employers using and collecting biometric information must obtain consent each time such information is collected and transmitted.
  • Damages may be assessed for each violation per employee affected.

Discussion

In Cothron v. White Castle Systems, Inc., the Illinois Supreme Court stated that each time a business scans or transmits an individual’s biometric information, a separate claim arises under the Biometric Information Privacy Act (BIPA). BIPA regulates the collection, possession, storage, disclosure, sale, and retention of biometric data. Here, a manager of a White Castle restaurant filed a class action alleging that White Castle unlawfully collected biometric information and disclosed it to a third-party vendor for verification each time employees scanned their fingers to access paystubs and computers. Earlier, in Tims v. Black Horse Carriers, the Illinois Supreme Court ruled a five-year statute of limitations applies to all provisions of the Biometric Information Privacy Act (BIPA).

In its ruling, the Court looked to the statutory language of BIPA. The plain language of the statute indicates that a claim arises each time a private entity collects or disseminates biometric data without prior informed consent. This interpretation by the Court, and due to the class action, could result in damages over $17 billion to White Castle. The Court attempted to soften its ruling by stating that a trial court could create a damage award that fairly compensated each class member and would deter future violations without destroying the defendant’s business. BIPA’s damages are also discretionary rather than mandatory. Regardless of the Court’s attempts to mitigate the significance of its ruling, employers using biometric information should consult with legal counsel immediately to ensure that proper notice and consent is obtained.

 

Action Items

  1. Review procedures for the use and collection of biometric information.
  2. Consult with legal counsel to obtain proper consent and provide notice to employees.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase