The Illinois Supreme Court Finds BIPA Claims Preempted by Federal Labor Law
ABSTRACT: After a string of opinions expanding the scope of the Illinois Biometric Information Privacy Act in favor of plaintiffs, the Illinois Supreme Court recently determined that Section 301 of the Labor Management Relations Act preempted a BIPA claim brought by a plaintiff against his former employer. This opinion is a welcome development for employers with employees subject to collective bargaining agreements and provides them with a potential avenue to avoid BIPA lawsuits in Illinois state court.
As discussed here, in February 2023, the Illinois Supreme Court issued two important decisions regarding the Illinois Biometric Information Privacy Act (“BIPA”). In March, the court again addressed BIPA, this time analyzing the relationship between BIPA and federal labor law. The potential for conflict between these laws exists because, as we discussed here, the Illinois Supreme Court has ruled that the Illinois Workers’ Compensation Act’s exclusivity provision does not apply to BIPA claims. Thus, employees are allowed to file civil suits alleging BIPA violations against their employers, rather than being limited to filing workers’ compensation claims.
In Walton v. Roosevelt Univ., the plaintiff filed a class action complaint in state court against his former employer, Roosevelt University, alleging that it violated multiple provisions of BIPA. The plaintiff’s claims arose out of Roosevelt’s requirement that the plaintiff and similarly situated employees enroll scans of their hand geometry onto a biometric timekeeping device as a means of clocking in and out. Roosevelt moved to dismiss the complaint, arguing that the plaintiff’s claims were preempted by Section 301 of the Labor Management Relations Act (“LMRA”). Section 301 grants federal district courts exclusive jurisdiction over state law claims when the resolution of such claims depends on the interpretation or administration of a collective bargaining agreement (“CBA”). Generally, disputes between employers and employees who are subject to a CBA fall within the exclusive purview of federal labor law, but this is not an automatic rule. Instead, the issue must be resolved on a case-by-case basis. For preemption to apply, an employer need only advance a “nonfrivolous argument” that the complained-of-conduct was authorized by the CBA.
According to Roosevelt, the plaintiff was a member of a labor union while he worked for Roosevelt and, therefore, agreed to a CBA between Roosevelt and the union. Roosevelt argued that the manner by which employees clocked in and out was a subject covered by the CBA – specifically, in a management rights clause that gave Roosevelt broad authority to control the terms of its employees’ employment – and thus the LMRA preempted the plaintiff’s BIPA claims. The management rights clause stated that Roosevelt’s exclusive rights of management included, among other things, the right to plan, direct, and control all operations performed in the building and to direct the working force.
The circuit court denied Roosevelt’s motion to dismiss, finding that the plaintiff’s claims were not preempted by the LMRA. The court reasoned that a person’s rights under BIPA exist independently of their employment and any applicable CBA and are not intertwined with, or dependent substantially upon, consideration of terms of a CBA. Roosevelt subsequently appealed to the First District Appellate Court. In finding for Roosevelt, the appellate court determined that the broad management rights clause in the CBA required an arbitrator to determine whether Roosevelt and the union bargained about the employment issue or the union consented to Roosevelt’s conduct on the plaintiff’s behalf. In reaching its conclusion, the appellate court noted that the issue of preemption had “been uniformly decided in federal courts in favor of preemption.” Walton v. Roosevelt Univ., 2022 IL App (1st) 210011, ¶ 24. The court concluded by noting that the plaintiff and fellow unionized employees were not prohibited from pursuing redress for alleged violations of their rights to biometric privacy, but they were required to pursue those rights through the grievance procedures outlined in their CBA.
The Illinois Supreme Court granted the plaintiff’s petition for leave to appeal. The court began its analysis by noting that the United States Supreme Court had not addressed the specific issue in the case. Consequently, the court relied upon two opinions from the Seventh Circuit, Miller v. Southwest Airlines Co., 926 F.3d 898 (7th Cir. 2019) and Fernandez v. Kerry, Inc., 14 F.4th 644 (7th Cir. 2021). Both cases arose from the plaintiffs’ employers’ collection of their biometric information through the use of time clocks. In those cases, the Seventh Circuit determined that the plaintiffs’ BIPA claims were preempted by federal law due to CBA’s between the plaintiffs’ unions and their employers.
The plaintiff in Walton argued that those cases were improperly decided. According to the plaintiff, the Seventh Circuit erroneously believed that the dispute in each case centered on the employers’ use of timekeeping devices, when the actual issue raised was whether the employers collected, stored, and disseminated employee biometric information without informed consent. The plaintiff characterized his BIPA claims as falling outside the scope of his union’s CBA because the CBA did not mention biometric information and did not make his union his authorized representative for purposes of providing consent to biometric information collection.
The Illinois Supreme Court rejected the plaintiff’s argument, finding that the decisions in Miller and Fernandez were not “without logic or reason.” In discussing Miller, the court cited the Seventh Circuit’s statement that BIPA provides that a worker or an authorized agent may consent to the collection of biometric information and its finding that the plaintiffs’ unions in that case were such authorized agents. The Supreme Court also noted the Seventh Circuit’s conclusion that the question of whether the plaintiffs’ unions actually consented to the collection and use of the plaintiffs’ biometric information or granted such authority through a management rights clause was a question for an administrative board, not a court. The court further cited to the Seventh Circuit’s holding in Miller that when an employer invokes a broad management rights clause from a CBA in response to a BIPA claim, the claim is preempted because it is up to an arbitrator to determine whether the employer properly obtained the union’s consent.
Ultimately, the court determined that based on the language in the CBA and the LMRA, it was both logical and reasonable to conclude that the dispute must be resolved according to federal law and the agreement between the parties. Therefore, the court concluded that when an employer invokes a broad management rights clause from a CBA in response to a BIPA claim brought by bargaining unit employees, there is an “arguable claim” for preemption.The Walton opinion is a welcome development for employers because, until now, the Illinois Supreme Court had not addressed the issue of whether federal labor laws preempt BIPA claims. Now, if faced with a BIPA lawsuit by a current or former employee subject to a CBA, employers can cite to both Illinois state and federal court opinions to argue for preemption.