On September 18, 2020, the Illinois Court of Appeals, First District, took another shot at reconciling some of the inconsistencies in the application of Illinois’ Biometric Information Privacy Act (“BIPA”) (740 ILCS 14/1 et seq. (West 2018)) to the workplace. The interlocutory appeal in McDonald v. Symphony Bronzeville Park LLC, 2020 IL App (1st) 192398 (Sept.18, 2020), put a single issue before the First District: “Do the exclusivity provisions of the Workers’ Compensation Act bar a claim for statutory damages under [BIPA] where an employer is alleged to have violated an employee’s statutory privacy rights under [BIPA]?” However, the First District was not asked in this case to determine if the Workers’ Compensation Act preempts claims for actual damages.
The facts in this case, as commonly seen in BIPA litigation, involve allegations that the plaintiff “was required by her employer to provide biometric information by scanning her fingerprint for the purpose of utilizing a fingerprint-based time clock system implemented by defendants…” In addition to claiming she suffered damages resulting when her employer used her biometric information, “in each count of the complaint it was alleged that as a result of defendants’ wrongful conduct, [the defendant] suffered and continued to suffer ‘mental anguish and mental injury’ in that she ‘experiences mental anguish when thinking about what would happen to her biometric identifiers or information if Defendants’ went bankrupt, whether Defendant will ever delete her biometric identifiers or information, and whether (and to whom Defendants share her biometric identifiers or information.” The allegations in the complaint made it clear that the Plaintiff was seeking both statutory damages and actual damages.
Based on these allegations, Defendants filed motions to dismiss the class action complaint. Defendants took the position that the plaintiff’s claim “would be barred by the exclusivity provisions of the Workers’ Compensation Act (Compensation Act) (820 ILCS 305/1 et seq. (West 2018). The circuit court denied the motion to dismiss with a finding that the Compensation Act does not preempt “any claims by an employee against an employer under the Privacy Act.”
The question of whether class action plaintiffs are limited to a remedy under the Compensation Act has been prevalent in BIPA litigation for years. Unfortunately, this latest decision does not get to the exact question that litigants are seeking guidance on.
Rather, the First District opines that its decision is limited in scope by the exact wording of the certified question. The certified question requested that the First District “consider the applicability of the Compensation Act’s exclusivity provisions to a claim against an employer by its employee for ‘statutory damages’ resulting from a violation of an employee’s statutory privacy rights under the Privacy Act.” It did not mention actual damages. This issue results from the fact that Section 20 of BIPA provides statutory damages while the plaintiff in this case, and most BIPA cases, sought both statutory, liquidated damages and actual damages. (“We take this to refer to a claim for the liquidated damages provided for in in the statutory text cited above which were actually sought in the amended complaint below, not to acclaim for any greater amount of ‘actual damages’ that, while available under the Privacy Act, were not sought below.”)
Understandably, the limited scope of the First District’s analysis results in a decision that offers limited guidance for BIPA litigants. Simply, the First District holds “we cannot consider the applicability of the Compensation Act’s exclusivity provisions to any specific claim against an employer by its employee for ‘actual damages’ resulting from a violation of an employee’s statutory privacy rights under [BIPA].” Therefore, this decision provides no insight on whether a defendants’ claims for actual damages (mental anguish or emotional distress) can survive an employer’s motion to dismiss.
Next, the First District moved onto an analysis of issues presented by the limited scope of the certified question: Whether a claim by an employee against an employer for statutory, liquidated damages under BIPA is preempted by the Compensation Act? Here, the First District held claims for liquidated damages are not preempted by the Compensation Act. (“…we fail to see how a claim by an employee against an employer for liquidated damages under the Privacy Act—available without any further compensable actual damages being alleged or sustained and designed in part to having a preventative and deterrent effect—represents that type of injury that categorically fits within the purview of the Compensation Act, which is a remedial statute designed to provide financial protection for workers that have sustained an actual injury.”)
Based on this latest decision, it is clear that at least in the First District, the statutory, liquidated damages are not preempted by Illinois’ Workers’ Compensation Act. However, BIPA litigants still need guidance on whether defendants’ claims that they suffered actual damages such as emotional distress and mental injury or anguish are preempted by the Compensation Act. Due to the limited scope of the certified question, in this case, it is still unclear whether employees’ claims of actual damages are preempted by the Illinois Workers’ Compensation Act.