18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 665 BIPA. The Court opined that in all of these decisions the unionized employee alleged, on behalf of themselves and classes of similarly-situated individuals, that their employer violated the BIPA through collection, storage, and use of biometric information, and all the cases aligned with the Seventh Circuit’s ruling in Miller . The Court therefore concluded that since interpretation of the parties’ CBA would be required, Plaintiff’s claims were preempted by § 301 of the LMRA. Brandenberg, et al. v. Meridian Senior Living, LLC , 2021 U.S. Dist. LEXIS 37604 (C.D. Ill. March 1, 2021). Plaintiff, a former employee, filed a class action alleging that Defendant’s use of fingerprint scanners to clock-in and clock-out of work without providing the required written notice and obtaining employees’ consent violated the Illinois Biometric Information Privacy Act (“BIPA”). Plaintiff also contended that Defendant provided the fingerprint data to its timekeeping vendor without consent. Defendant filed a motion to dismiss, on which the Court had yet to rule. Defendant thereafter filed a motion to stay the proceedings and wait for decisions in four appeals now pending including Cothron v. White Castle System, Inc., Case No. 20-3202 pending before the Seventh Circuit; Tims v. Black Horse Carriers, Inc., Case No. 20-0562, pending before the Illinois Appellate Court for the First District; Marion v. Ring Container Techs., LLC , Case No. 20-0184, pending before the Illinois Appellate Court for the Third District; and McDonald v. Symphony Bronzeville Park, LLC , Case No. 126511, pending before the Illinois Supreme Court. Id . at *3. Defendant contended that the cases would resolve the issues of whether a cause of action under the BIPA accrued when Defendant first captured the biometric information, or whether a new cause of action accrued every time a person used such biometric information, which statute of limitations applied to the action, and whether the IWCA preempted employees’ claims against employers under the BIPA. Id . at *3-4. The Court declined to grant the motion for a stay as to the consideration of Defendant’s motion to dismiss, as the matter was fully briefed and the Court was ready to make a decision. However, the Court granted a stay of discovery pending its decision on the motion to dismiss, as it could make discovery unnecessary or affect the scope of discovery. Id . at *4-5. The Court therefore granted in part and denied in part the motion to stay proceedings. Brandenberg, et al. v. Meridian Senior Living, LLC , 2021 U.S. Dist. LEXIS 188305 (C.D. Ill. Sept. 30, 2021). Plaintiff, an employee, filed a class action alleging that Defendant’s use of biometric fingerprint scanners for clocking-in and out of work violated the Illinois Biometric Protection Act (“BIPA”) because Defendant failed to properly inform employees that it was collecting, storing, or disseminating their biometric information. Defendant filed a motion to dismiss on the grounds that: (i) Plaintiff’s BIPA claims were preempted by the Illinois Workers’ Compensation Act ("IWCA"); (ii) Plaintiff’s claims were barred by either the Illinois one-year or two-year statute of limitations period; (iii) Plaintiff failed to plead either recklessness, intent, or negligence; and (iv) Plaintiff assumed the risk that the privacy and security of her biometric information would be compromised by working at Defendant. Id . at *4. The Court explained that the Illinois Supreme Court had held that the BIPA "codified that individuals possess a right to privacy in and control over their biometric identifiers and biometric information." Id . at *11. Thus, the privacy rights protected by the BIPA are "distinct from those preempted by the IWCA." Id . The Court reasoned that Plaintiff solely claimed an injury to her right to privacy under the BIPA, which were injuries that could not be compensated under the IWCA and were, therefore, not preempted. The Court also determined that neither the one-year or two-year statute of limitations under Illinois law applied to Plaintiff’s claims, and therefore the five-year catch-all period applied. The Court found that since Plaintiff brought her claim within five years, the claim was timely. In addition, the Court determined that Plaintiff’s allegations that Defendant collected, stored, and utilized her biometric information without providing notice or obtaining written consent was sufficient to state a claim under the BIPA. The Court ruled that Plaintiff adequately alleged facts to support a claim for relief and, therefore, survived her complaint would survive dismissal. Finally, the Court concluded that Defendant’s presumption of risk defense also failed. The Court explained that the BIPA’s statutory language made clear that the assumption of the risk defense was not available, as it required private entities to provide written notice that they are collecting biometric information, their purposes for doing so, how long they will be collecting the data, and to obtain informed consent from those whose data they are collecting. Id . at *14. For these reasons, the Court denied Defendant’s motion to dismiss. Callender, et al. v. Quality Packaging Specialists International, LLC , 2021 U.S. Dist. LEXIS 162360 (S.D. Ill. Aug. 27, 2021). Plaintiff, a former employee, filed a class action alleging that Defendant’s use of a biometric timekeeping system violated the Illinois Biometric Information Protection Act (“BIPA”) by collecting and storing