{"id":396,"date":"2023-03-24T17:21:31","date_gmt":"2023-03-24T21:21:31","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=396"},"modified":"2023-03-24T17:21:31","modified_gmt":"2023-03-24T21:21:31","slug":"illinois-supreme-court-holds-federal-labor-law-preempts-bipa-claims-asserted-by-unionized-employees","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2023\/03\/24\/illinois-supreme-court-holds-federal-labor-law-preempts-bipa-claims-asserted-by-unionized-employees\/","title":{"rendered":"Illinois Supreme Court Holds Federal Labor Law Preempts BIPA Claims Asserted By Unionized Employees"},"content":{"rendered":"

\"\"<\/a><\/p>\n

By Alex W. Karasik, Tyler Z. Zmick, and Elizabeth C. Mincer<\/span><\/strong><\/p>\n

Duane Morris Takeaways:\u00a0\u00a0<\/em><\/strong>In the Illinois Supreme Court\u2019s latest ruling in the biometric privacy space, it decided\u00a0<\/a>in\u00a0Walton v. Roosevelt University<\/em>, 2023 IL 128338 (Ill. Mar. 23, 2023), that claims brought under the Biometric Information Privacy Act (\u201cBIPA\u201d) by bargaining unit employees are preempted by Section 301 of the Labor Management Relations Act (\u201cLMRA\u201d) where an employer invokes a broad management rights provision in a CBA.\u00a0 This ruling \u2013 which is consistent with federal court decisions addressing the issue \u2013 is a rare win for defendants facing BIPA class actions.\u00a0 Employers with unionized workforces may now be able to assert an LMRA preemption defense in seeking dismissal of BIPA claims based on decisions issued by Illinois\u2019s highest state court and the U.S. Court of Appeals for the Seventh Circuit.<\/p>\n

Case Background<\/strong><\/p>\n

Plaintiff alleged that when he started working at Roosevelt University in 2018, Roosevelt required him to enroll a scan of his hand geometry onto a biometric timekeeping device as a means of clocking in and out of work.\u00a0 Plaintiff sued Roosevelt the following year, alleging that the university violated Sections 15(a), 15(b), and 15(d) of the BIPA in connection with Roosevelt\u2019s use of the timekeeping system by (i) failing to develop a written policy made available to the public establishing a retention policy and guidelines for destroying biometric data, (ii) collecting his biometric data without providing him with the requisite notice and obtaining his written consent, and (iii) disclosing his biometric data without consent.<\/p>\n

In response to the complaint, Roosevelt moved to dismiss on the basis that Plaintiff\u2019s claims were preempted by Section 301 of the Labor Management Relations Act (\u201cLMRA\u201d).\u00a0 Specifically, Roosevelt argued that Plaintiff had been a union member while employed by Roosevelt, and the collective bargaining agreement (\u201cCBA\u201d) between Roosevelt and Plaintiff\u2019s union contained a management rights clause broad enough to cover the manner by which union employees clocked in and out of work.\u00a0 As support, Roosevelt cited the U.S. Court of Appeals for the Seventh Circuit\u2019s decision in Miller<\/em> v. Southwest Airlines Co.<\/em>, 926 F.3d 898 (7th Cir. 2019), which held that federal labor law preempts BIPA claims when the claims require interpretation or administration of a CBA.<\/p>\n

The Cook County Circuit Court rejected Roosevelt\u2019s LMRA preemption argument, finding Miller<\/em> distinguishable and holding that BIPA claims are \u201cnot intertwined with or dependent substantially upon consideration\u201d of terms of a CBA because a person\u2019s rights under the BIPA \u201cexist independently of both employment and any given CBA.\u201d\u00a0 Id.<\/em> \u00b6 6.\u00a0 Because the issue presented a close call, however, the Circuit Court certified the following question for interlocutory appeal: \u201cDoes Section 301 of the [LMRA] preempt [BIPA] claims asserted by bargaining unit employees covered by a [CBA]?\u201d<\/p>\n

The Illinois Appellate Court answered the certified question \u201cyes.\u201d\u00a0 In doing so, the court noted that the Seventh Circuit had recently come to the same conclusion in a case where \u201cthe relevant factual and legal circumstances . . . [were] indistinguishable.\u201d\u00a0 Id.<\/em> \u00b6 8 (citing Fernandez v. Kerry, Inc.<\/em>, 14 F.4th 644 (7th Cir. 2021)).\u00a0 The appellate court determined that Fernandez <\/em>reached the correct conclusion, as the BIPA \u201ccontemplates the role of a collective bargaining unit acting as an intermediary on issues concerning an employee\u2019s biometric information.\u201d\u00a0 Id.<\/em> \u00b6 10 (noting that the BIPA prohibits private entities from collecting biometric information without obtaining consent from the subject or the subject\u2019s legally authorized representative<\/em><\/strong>).<\/p>\n

The Illinois Supreme Court\u2019s Decision<\/strong><\/p>\n

The Illinois Supreme Court subsequently allowed Plaintiff\u2019s petition for leave to appeal, after which it affirmed the appellate court\u2019s decision.\u00a0 The Supreme Court observed that the Seventh Circuit had twice held that federal law preempts BIPA claims asserted under similar circumstances, and it noted that when interpreting federal statutes, Illinois courts look to the decisions of the U.S. Supreme Court (\u201cSCOTUS\u201d) and federal circuit and district courts.\u00a0 It further noted that the SCOTUS\u2019s interpretation of federal law is binding, and that in the absence of SCOTUS precedent, the weight given to federal circuit and district court interpretations of federal law depends on factors such as uniformity of law and the soundness of the decisions.\u00a0 See id.<\/em> \u00b6\u00b6 23-24 (\u201c[I]f lower federal courts are uniform in their interpretation of a federal statute, this court, in the interest of preserving unity, will give considerable weight to those courts\u2019 interpretations of federal law and find them to be highly persuasive.\u201d).<\/p>\n

In comparing Plaintiff\u2019s case to the Seventh Circuit decisions, the Supreme Court acknowledged that the relevant CBA provisions in Plaintiff\u2019s case and in Fernandez<\/em> both contained similarly broad management rights clauses.\u00a0 See id.<\/em> \u00b6 31 (noting the CBA between Roosevelt and Plaintiff\u2019s union stated that \u201c[s]ubject to the provisions of this Agreement, the Employer shall have the exclusive right to direct the employees covered by this Agreement\u201d and that \u201c[a]mong the exclusive rights of management . . . are: the right to plan, direct, and control all operations performed in the building [and] to direct the working force\u201d).<\/p>\n

In sum, because the Supreme Court did not find Miller<\/em> and Fernandez<\/em> to be \u201cwithout logic and reason,\u201d id.<\/em>, it deferred to the uniform federal case law on the issue and held that when an employer invokes a CBA\u2019s broad management rights clause in response to a BIPA claim brought by a bargaining unit employee, the plaintiff\u2019s BIPA claims are preempted by the LMRA.<\/p>\n

Implications For Employers<\/strong><\/p>\n

Like the Seventh Circuit\u2019s decisions in Miller<\/em> and Fernandez<\/em>, Walton<\/em> reflects a rare defendant-friendly development and provides a basis for certain employers to seek dismissal of BIPA claims on LMRA preemption grounds.\u00a0 The defense applies only to a subset of employers, however, as it can be asserted only by (i) employers with unionized employees who (ii) have entered into a CBA with a union that contains a management rights clause broad enough to cover the manner by which employees clock in and out of work.\u00a0 Furthermore, unionized employees are not prohibited<\/em><\/strong> from seeking redress for alleged BIPA violations \u2013 they are simply required to first pursue those claims through the grievance procedures in their CBAs rather than in state or federal court.<\/p>\n

Moreover, the National Labor Relations Board (\u201cNLRB\u201d) \u2013 the agency that enforces the National Labor Relations Act (\u201cNLRA\u201d) \u2013 has indicated that it intends to reshape current law regarding employee privacy and management rights provisions. If such changes take effect, they could reshape how courts assess federal labor law preemption in future BIPA cases.<\/p>\n

The Walton<\/em> ruling highlights the importance of carefully negotiating and drafting CBA provisions, particularly with respect to management rights.\u00a0 Employers in states with strict privacy laws (like the BIPA) should consider contract language that specifically provides management with the right to use and store certain biometric data and\/or implement other new technologies.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Alex W. Karasik, Tyler Z. Zmick, and Elizabeth C. Mincer Duane Morris Takeaways:\u00a0\u00a0In the Illinois Supreme Court\u2019s latest ruling in the biometric privacy space, it decided\u00a0in\u00a0Walton v. Roosevelt University, 2023 IL 128338 (Ill. Mar. 23, 2023), that claims brought under the Biometric Information Privacy Act (\u201cBIPA\u201d) by bargaining unit employees are preempted by Section … <\/p>\n

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