Illinois Supreme Court Closes the Door on Workers' Compensation Exclusivity Defense in BIPA Cases and Opens the Floodgates for Employee Lawsuits
ABSTRACT: Since the surge of BIPA lawsuits began in 2019, a question has remained: Do employees have the right to file lawsuits under BIPA against their employers, or are such claims preempted by the Illinois Workers' Compensation Act? On February 3, 2022, the Illinois Supreme Court resolved this issue, finding that the Workers' Compensation Act does not preclude employees from pursuing BIPA lawsuits against their employers.
As previously discussed here, the Illinois Biometric Information Privacy Act (“BIPA”) looms large over the Illinois legal landscape in 2022. Specifically, the Illinois Supreme Court and the Illinois Appellate Court are set to resolve important questions regarding when claims arise under BIPA, which statute of limitations governs certain types of BIPA claims, and whether the Illinois Workers’ Compensation Act prohibits employees from filing suit against their employers under BIPA.
On February 3, 2022, the Illinois Supreme Court resolved the workers’ compensation question. In the case McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511, the court affirmed a judgment of the Illinois First District Court of Appeals, concluding that the exclusivity provisions of the Illinois Workers’ Compensation Act did not preempt the plaintiff from pursuing a BIPA lawsuit against her former employer. The Illinois Workers’ Compensation Act contains two exclusivity provisions. Those provisions state, in relevant part, the following:
No common law or statutory right to recover damages from the employer *** for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act…
820 ILCS 305/5(a).
The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer…
820 ILCS 305/11.
Based upon those provisions, Illinois courts have repeatedly explained that the Workers’ Compensation Act generally provides the exclusive means by which an employee can recover against an employer for a work-related injury. There are exceptions to the exclusivity provisions, however. Specifically, an employee can avoid application of the provisions if the employee establishes that the injury: 1) was not accidental; 2) did not arise from his or her employment; 3) was not received during the course of employment; or 4) was not compensable under the Workers’ Compensation Act.
In McDonald, the plaintiff alleged that while she was employed by Bronzeville, the company used a biometric information system, which required the plaintiff to scan her fingerprint for authentication and timekeeping purposes. According to the plaintiff, Bronzeville violated BIPA by failing to obtain the plaintiff’s consent to store her biometric information and notify her of the purpose and length of time for which her biometric information would be stored. The plaintiff sought liquidated damages of $1,000 per each negligent violation of BIPA pursuant to Section 20(1) of BIPA, and her reasonable attorneys’ fees and litigation expenses pursuant to Section 20(3) of BIPA.
Bronzeville filed a motion to dismiss, arguing that the exclusivity provisions of the Illinois Workers’ Compensation Act barred the plaintiff from pursuing her BIPA lawsuit against it. The Circuit Court of Cook County rejected Bronzeville’s argument and denied its motion. The First District Court of Appeals similarly concluded that the Act’s exclusivity provisions did not bar the plaintiff’s claims for statutory, liquidated damages under BIPA.
On appeal, Bronzeville argued to the Illinois Supreme Court that despite BIPA providing “a right of action in a [s]tate circuit court,” the Workers’ Compensation Act’s exclusivity provisions precluded the plaintiff from maintaining the lawsuit because her alleged injury occurred in the course of her employment. Bronzeville cited to a 1958 Illinois Supreme Court opinion in which the court determined that the workmen’s compensation statute in effect at that time barred an employee’s statutory lawsuit filed against his employer pursuant to the scaffold statute. In the 1958 case, the court reasoned that the employee’s lawsuit arose out of injuries he sustained while climbing to a scaffold in the course of his employment, thus triggering the exclusivity provisions.
The court indicated that the case raised the question of whether the fourth exception to the exclusivity provisions (i.e., whether the plaintiff’s alleged injuries were “compensable” under the Workers’ Compensation Act) applied. Resolution of the issue required a determination of the type of injury the plaintiff allegedly sustained. Bronzeville argued that any injury arising out of and in the course of employment triggers the exclusivity provisions, while the plaintiff contended that the provisions applied only to claims alleging physical or psychological injuries.
According to the court, the test for whether an employee suffers a compensable injury is “whether there was a harmful change in the human organism – not just its bones and muscles, but its brain and nerves as well.” The court found this test consistent with provisions of the Workers’ Compensation Act that indicate the Act applies to injuries that affect an employee’s capacity to perform employment-related duties and the Act’s “main purpose” of providing financial protection for injured workers’ until they can return to the workforce.
Turning to the plaintiff’s alleged injuries, the court first noted that the type of injuries caused by a violation of BIPA are “personal and societal” and, thus, different in nature and scope from the physical and psychological work injuries compensable under the Workers’ Compensation Act. The court indicated that the plaintiff specifically sought damages for the lost opportunity to “say no” to the storage of her biometric information by withholding consent. Stated differently, the plaintiff alleged that Bronzeville violated her right to maintain her biometric privacy. According to the court, the plaintiff’s loss of the ability to maintain her privacy rights did not constitute a psychological or physical injury compensable under the Workers’ Compensation Act. Therefore, the exclusivity provisions did not bar her claims under BIPA.
The court next ruled more broadly that a violation of BIPA does not cause the type of injury that fits within the purview of the Workers’ Compensation Act. Thus, an injury resulting from a BIPA violation is not compensable under the Workers’ Compensation Act. In reaching this conclusion, the court cited to prior court opinions that indicated a compensable injury requires “demonstrable medical evidence” and that the purpose of workers’ compensation laws is to redress an injured employee’s impaired earning capacity. While not expressly stated, the court seemingly contrasted McDonald’s impaired privacy right, which did not cause her physical injury or an impaired earning capacity, with the type of physical and psychological injuries discussed in the prior court opinions.
The court also seemed to close the door on future efforts to bring BIPA claims within the scope of the Workers’ Compensation Act. For example, in McDonald, the plaintiff sought the statutory, liquidated damages provided for by Section 20(1) of the Act. BIPA, however, allows a plaintiff to recover either the $1,000 in liquidated damages or actual damages, whichever is greater. It appears that McDonald did not allege any actual, concrete injury or economic damages due to Bronzeville’s alleged violations of BIPA. Had she instead alleged that she suffered some type of actual injury and damages, such as emotional injury and economic damages due to a breach of her biometric information, perhaps Bronzeville may have had a stronger argument that she suffered a compensable injury. In fact, in a concurring opinion, Justice Burke noted that the plaintiff abandoned a claim for mental anguish that she originally included in her complaint. Justice Burke believed that plaintiff’s claim for mental anguish would have triggered the Workers’ Compensation Act’s exclusivity provisions. The majority of the court, however, determined that the plain language of BIPA supports a conclusion that the Illinois legislature did not intend for BIPA to be preempted by the Workers’ Compensation Act. Consequently, it appears that the Illinois Supreme Court believes that the exclusivity provisions do not preempt BIPA claims, regardless of the type of damages sought.
Finally, the court addressed the argument that allowing employees to pursue BIPA claims against their employers could expose employers to potentially devastating class actions that could result in “financial ruin.” The court explained that it was cognizant of the “substantial consequences” the Illinois legislature intended as a result of BIPA violations. According to the court, in enacting BIPA, the Illinois legislature adopted a strategy to limit the risks posed by the growing use of biometrics by businesses and the difficulty in providing meaningful recourse once a person’s biometric information has been compromised. Specifically, the Illinois legislature included a provision in BIPA subjecting private entities that fail to follow the Act’s requirements to substantial potential liability regardless of whether or not actual damages can be shown. The court believed that the legislature intended for the damages provision to have “substantial force.” To the extent a different balance should be struck under BIPA, however, the court noted that this was an issue to be addressed by the legislature, not the courts.
Ultimately, the Illinois Supreme Court’s ruling is not entirely surprising. As the court noted in its opinion, it believes that the Illinois legislature intended for BIPA to have substantial force. In McDonald, the court repeatedly and favorably cited to its landmark BIPA opinion, Rosenbach v. Six Flags Ent. Corp., 2019 IL 123186, where the court found that a plaintiff does not need to allege an actual injury or economic damages to pursue a BIPA claim. The consequences of this case, however, are likely to be felt by businesses throughout Illinois as the scope of BIPA seems ever widening.