18th Annual Workplace Class Action Report - 2022 Edition

666 Annual Workplace Class Action Litigation Report: 2022 Edition her biometric information without issuing proper notices, obtaining written consent, or disclosing its retention and destruction policies. The parties filed a joint motion to stay the proceedings, which the Court granted in part and denied in part. The parties moved to stay pending the disposition of rulings in four appeals in other cases, arguing that they would all impact the instant matter in material ways, including: (i) In Re McDonald v. Symphony Bronzeville Park, LLC , Case No. 126511 (Ill.); (ii) Tims v. Black Horse Carriers, Inc. , Case No. 1-28- 0563 (Ill. App., 1st Dist.); (iii) Marion v. Ring Container Technologies, LLC , Case No. 3-20-0184 (Ill. App., 3rd Dist.); and (iv) Cothron v. White Castle Systems, Inc. , Case No. 20-3202 (7th Cir.). In McDonald, the Illinois Appellate Court held that the Illinois Workers Compensation Act (“IWCA”) does not preempt BIPA claims, which thereafter the employer sought an appeal to the Illinois Supreme Court. The Court found that a stay based on McDonald was not likely to simplify the issues, as numerous case law authorities have determined that it was unlikely that the Illinois Supreme Court will find that the IWCA preempts the BIPA. Thus the Court denied the motion to stay pending the resolution in McDonald . As to Tims and Marion , the Court observed that both concerned the unsettled question of which statute of limitations period applies to BIPA claims. Therefore, the Court held that a decision from the Illinois Appellate Court may be binding as the Illinois Supreme Court has not yet decided the applicable statute of limitations for BIPA claims, and therefore it would be appropriate to stay this case pending the Tims and Marion decisions. Id . at *4. Finally, Cothron concerned the question of when a BIPA claim accrues. Since the Seventh Circuit’s decision in Cothron decision would be binding and could significantly affect Plaintiff’s claims, the Court determined a stay was also warranted pending the outcome in Cothron . Accordingly, the Court agreed to stay proceedings in the instant matter pending resolution of Tims , Marion, and Cothron. Carmean, et al. v. Bozzuto Management , 2021 U.S. Dist. LEXIS 111842 (N.D. Ill. June 15, 2021). Plaintiff, a former apartment complex employee, filed a class action alleging that Defendant’s use of a fingerprint scanning for timekeeping purposes violated the Illinois Biometric Information Protection Act (“BIPA”). Plaintiff asserted that Defendant: (i) failed to develop and maintain a publicly available retention and destruction schedule for the employees’ biometric information; (ii) obtained their biometric information without making the required disclosures and receiving written releases; (iii) disclosed their biometric information; and (iv) failed to adequately protect their biometric information. Id . at *2. Defendant filed a motion to dismiss pursuant to Rule 12(b)(1) and/or Rule 12(b)(6). The Court granted the motion. Defendant contended that as members of a union subject to a collective bargaining agreement (“CBA”), § 301 of the Labor-Management Relations Act (“LMRA”) completely preempted Plaintiff’s BIPA claims, because resolving the claims would necessarily entail interpretation of the CBA. The Court explained that § 301 of the LMRA completely preempts state law claims "founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective-bargaining agreement." Id . at *5-6. The Railway Labor Act (“RLA”), which applies to unionized employees in the railroad and airline sectors, also completely preempts state laws in the same manner. The Court explained that the Seventh Circuit previously had held that the RLA completely preempted BIPA claims brought by unionized airline employees whose employers required them to scan their fingerprints to clock-in and clock-out of work. The Seventh Circuit had found that the manner in which employees clocked-in and out was a CBA mandated policy, and thus would require the it to interpret the "management-rights" clauses of the CBAs between the airlines and the employees’ unions to determine if they consented to the collection and use of the employees’ biometric data. Id . at *6. Defendant contended that this ruling applied to Plaintiff’s case because the LMRA operated in the same way as the RLA. The Court agreed with Defendant. It held that the extent to which the union consented to the CBA’s management rights clause for to the use, retention, and disclosure employees’ biometric information would require interpretation of the CBA. The Court thus held that because Plaintiff’s BIPA claims were § 301 claims, Plaintiff must first have gone through the grievance process outlined in the CBA. Since Plaintiff had not done so, the Court granted Defendant’s motion to dismiss without prejudice. Carpenter, et al. v. McDonald ’ s Corp., Case No. 21-CV-2906 (N.D. Ill. Nov. 1, 2021). Plaintiff, a restaurant customer, filed a state court class action alleging that Defendant collected customers’ voiceprint biometrics at its drive-through lanes and violated the Illinois Biometric Information Privacy Act (“BIPA”) by not disclosing that it was collecting the information or informing customers of its retention and dissemination policies. After Defendant removed the action, Plaintiff moved to remand two of the four BIPA claims to state court. Plaintiff contended that his allegations did not plead a concrete injury-in-fact necessary to satisfy Article III standing. The Court agreed, and granted the motion to remand. Plaintiff’s claim under § 15(a) of the BIPA asserted that Defendant failed to: