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  • Downey & Lenkov, LLC

Workers’ Compensation Law Does Not Bar Biometric Privacy Claims

In McDonald v. Symphony Bronzeville, Park, LLC (2022 IL 126511), the Supreme Court of The State of Illinois found that the exclusivity provisions of the Illinois Workers’ Compensation Act (Act) did not bar Plaintiff from bringing suit against an employer under the Biometric Information Privacy Act (BIPA).

Plaintiff filed a putative class action alleging that her employer collected and maintained her fingerprint scan improperly and that her employer’s actions were in violation of the BIPA. Plaintiff claimed that she should be able to file suit against her employer outside of the Act. Employer argued that Plaintiff’s injury arose out of and in the course of her employment and that her recovery was limited to remedies under the Act.

The BIPA governs the collection, retention, use, disclosure and destruction of biometric data by employers including retina/iris scans, fingerprints, voiceprints, or scans of the hand or face. It is well established that the Act provides an exclusive remedy for injuries arising out of and in the course of employment in Illinois. The court here differentiated under the Act and under the BIPA and allowed Plaintiff to proceed with her case against her employer.

The court noted that the overall purpose of the Act is to give physically or mentally injured workers the proper financial support to return to the workforce. In this matter, Plaintiff’s “injury” was based on a violation under the BIPA, not a claim of mental or physical injury. The court determined Plaintiff’s claim was not covered under the Act and thus the exclusive remedy provision did not apply.

Practice Tip: The collection and storage of personal information (biometrics) is a highly sensitive process. You should consider the risks and rewards of biometric uses before incorporating it into your employee handbook.

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