Jury Awards $228 Million in Novel Illinois Biometric Privacy Case

Author: David B. Weisenfeld

October 13, 2022

In the first-ever biometric privacy class action to go to trial in Illinois, a federal jury in Chicago awarded $228 million yesterday to a group of more than 45,000 truck drivers. The drivers accused their employer, BNSF Railway Company, of using a fingerprint system without their written consent in violation of the Illinois Biometric Privacy Act (BIPA).

Enacted in 2008, BIPA requires Illinois employers that collect or maintain "biometric identifiers" such as fingerprints, iris scans or face scans to inform the affected individuals that:

  • Their information is being stored;
  • The purpose of the collection or use of the information, and
  • The length of time for which it will be stored.

The Illinois BIPA is the only state law of its kind in the US, though other states have considered similar measures.

The jury found BNSF liable for recklessly or intentionally violating BIPA 45,600 times - or one violation per class member. The damages award is based on the maximum BIPA penalty of $5,000 per violation.

At trial, BNSF claimed that a third-party contractor operated the exit gates at its facilities and collected the biometric data. But the jury disagreed and found the contractor was acting as an agent of the railway company. The company said it plans to appeal.

Earlier this year, the Illinois Supreme Court ruled that workers' compensation law does not preclude employees from suing their employers under the unique biometric privacy law, opening the door to potentially significant damages for employers that violate BIPA. Another case is currently pending before the Illinois High Court involving the reach of BIPA liability.

Speaking with XpertHR in 2019 in reference to the biometric privacy law generally, Faegre Drinker employment attorney Greg Abrams cautioned, "There is no prohibition on using biometric information. The prohibition is on doing so when the proper steps are not followed."