Novel Biometrics Ruling Could Open Door to Lawsuits in Illinois

Author: David B. Weisenfeld, XpertHR Legal Editor

February 4, 2019

The Illinois Supreme Court has given the green light for consumers to sue companies for collecting biometric data, such as fingerprints, without telling them how the information will be used or first getting their written consent. While the ruling arises out of the consumer context, it has clear implications for employers.

In Rosenbach v. Six Flags Entertainment, a major amusement park found itself at the center of a lawsuit after it collected a teenager's thumb print on a school field trip when he bought a season pass. The teen's family sued under the Illinois Biometric Information Privacy Act (BIPA), claiming the amusement park informed neither the boy nor his parents as to why it was collecting this data or how long it would be stored.

In siding with the plaintiffs, the Illinois Supreme Court noted that in enacting this privacy law, the state legislature pointed out that biometrics are unlike other unique identifiers that are used to access finances or other sensitive information. For example, the legislature explained, "Social security numbers, when compromised, can be changed. Biometrics, however, are biologically unique to the individual; therefore, once compromised, the individual has no recourse" and is at greater risk for identity theft.

Due to that heightened risk, the court found that monetary damages under the BIPA are not limited to those who can show they suffered some actual injury or damage beyond the infringement of their privacy rights.

Chicago employment attorney Greg Abrams, of Faegre Baker Daniels, told XpertHR that even though Rosenbach was not an employment case, multiple BIPA class actions have been filed against employers.

"These suits typically claim that the use of 'biometric' time clocks, which allegedly capture employees' fingerprints for timekeeping purposes, have not comported with the BIPA's procedural requirements," said Abrams. "There already has been a flurry of such litigation, but the Rosenbach decision should accelerate the trend of plaintiffs' attorneys filing class action lawsuits on behalf of employees and consumers."

In a statement to the Chicago Tribune, the Illinois Chamber of Commerce expressed concern that the ruling will hurt employers and "open the floodgates" to litigation at the expense of the state's commercial health. A wide range of employers, including Google, Snapchat and United Airlines, have faced claims in Illinois for improper use of biometric data.