18th Annual Workplace Class Action Report - 2022 Edition

668 Annual Workplace Class Action Litigation Report: 2022 Edition bargaining agreement and must be resolved between the union and the employer. Id . at *2-3. The Seventh Circuit held that whether the topic of bargaining be mandatory (in the sense that the employer must bargain about it on the union’s demand) or permissive, the union acts as the workers’ agent. Id . at *3. Therefore, if the employer invokes a management-rights clause, it must decide whether the employer properly obtained the union’s consent. Accordingly, the Seventh Circuit affirmed the District Court’s ruling finding that Plaintiffs’ claims were preempted by the LMRA. Figueroa, et al. v. Kronos Inc., Case No. 19-MD-2913 (N.D. Cal. April 14, 2021). Plaintiffs filed a class action alleging that Defendant violated the Illinois Biometric Information Privacy Act (“BIPA”). Defendant moved to stay the action pending decisions by: (i) the Seventh Circuit in Cothron v. White Castle System, Inc. , Case No. 20- 3202; and (ii) the Illinois Appellate Court in Tims v. Black Horse Carriers, Inc., Case No. 20-0562. Defendant argued that the appeals in both cases addressed issued fundamental to Plaintiffs’ action, including the appropriate statute of limitations in BIPA actions and the accrual of BIPA violations. The Court granted the stay. The Court found that the outcome of the appeals could have a significant impact on Plaintiffs’ action and could aid in the resolution of key legal issues. Id . at 2-3. The Court noted that should the Appellate Court in Tims find that BIPA claims are governed by a one-year statute of limitations, and the Seventh Circuit in Cothron rule that only the initial collection of biometric data constitutes a violation of the BIPA, Plaintiff’s claims could be time- barred. Accordingly, the Court reasoned that a stay would save time, money, and effort for all parties. For these reasons, the Court granted Defendant’s motion to stay Plaintiffs’ action pending the rulings in Cothron and Tims . Fleury, et al. v. Union Pacific Railroad Co. , 2021 U.S. Dist. LEXIS 55766 (N.D. Ill. March 24, 2021). Plaintiff, a truck driver visiting rail yards owned by Defendant, filed a class action alleging that Defendant violated the Illinois Biometric Information Protection Act (“BIPA”) when it stored and collected Plaintiff’s biometric information collected with a fingerprint scanner without obtaining prior written consent. Plaintiff further alleged that Defendant failed to provide employees with written disclosures describing the specific purpose and length of time for which their biometric information was being collected and stored, and transmitted the data to other parties without consent. Defendant filed a motion to dismiss pursuant to Rule 12(b)(6), which the Court denied. Defendant argued that Plaintiff’s claim was preempted by both the Federal Railroad Safety Act (“FRSA”) and the Interstate Commerce Commission Termination Act (“ICCTA”), and that he failed to state a claim because he consented to the collection of his biometric information. Under the FRSA a “State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement.” Id . at *7-8. Thus, Defendant contended that the FRSA preempted Plaintiff’s BIPA claim because the U.S. Department of Homeland Security ("DHS") promulgated certain regulations and standards covered the subject of using biometric information as a security measure to access railroad facilities. Id . at *8. The Court found that Defendant’s argument was premature at the motion to dismiss stage, and that the minimum security requirements did not constitute a "regulation" or "order" which would trigger the FRSA preemption. Id . at *11. The Court reasoned that at most, the DHS standards "touch upon" or "relate to" the collection of biometric information, but that alone was not enough for FRSA preemption. Id . at *13. Further, the Court noted that the ICCTA also contains an express preemption provision, including :“(i) any form of state or local permitting or preclearance that, by its nature, could be used to deny a railroad the ability to conduct some part of its operations or to proceed with activities that the Board has authorized; (ii) the state or local regulation of matters directly regulated by the Board, such as the construction, operation, and abandonment of rail lines railroad mergers, line acquisitions, and other forms of consolidation, and railroad rates and service with interstate commerce.” Id . at *20. However, the Court held that Defendant failed to show how the BIPA fell into either category of state action that was preempted, as it did not have a "permitting or preclearance" requirement, nor did the statute interfere with matters "directly regulated by the Board.” Id . at *21. Defendant further asserted that Plaintiff’s BIPA claim was categorically preempted because it amounted to "regulation of rail transportation." Id . The Court, however, opined that even though the ICCTA’s broad definition of "transportation" meant its preemption provision applied to railroad facilities, that did not mean the BIPA amounted to regulation of rail transportation. Id . Defendant also argued the BIPA would act to regulate its security measures at certain facilities and would interfere with its operations. However, the Court ruled that at the motion to dismiss stage, any determination as to what impact the BIPA would have on Defendant’s operations would be "highly