Lawyer Monthly Magazine - August 2019 Edition

More recently in 2019, in Liu v. Four Seasons Hotel, Ltd., an Illinois Appellate Court found that plaintiffs who filed a class action alleging BIPA violations were not subject to mandatory arbitration. The employment agreements contained a class waiver provision and required that wage or hour violations be submitted to an arbitrator. The court found that BIPA applies inside and outside of the workplace, and although an employer might use biometric data for timekeeping purposes, it does not transform the complaint into a wage or hour claim. Again, this ruling is likely to impact future class action cases in which plaintiffs previously agreed to arbitrate certain claims. In May 2019, a Chicago hotel worker brought a suit in Cook County against his former hotel employer over fingerprint scans. The suit was based on the company’s failure to obtain written consent to collect and share the biometric information related to timekeeping and payroll. The plaintiff is seeking a class action of all individuals in Illinois who have had their fingerprints scanned by the hotel’s timeclock. Universal Orlando Resort was also recently hit with an Illinois proposed class action lawsuit. While visiting the park, the plaintiff alleges he was informed that Illinois residents are required to scan their fingerprints as a condition to entering the theme park and that there was no other way to obtain entrance. The lawsuit claims that Universal Orlando Resort knowingly obtains Illinois customers’ biometrics without their informed written consent, as required by BIPA. WHAT ABOUT OTHER STATES IN THIS AREA? While Illinois was one of the first states to pass legislation addressing a private entity’s collection of biometric data, others have done so as well. Texas and Washington have passed similar laws dictating private businesses’ use and storage of biometrics, and several other states have enacted laws protecting students and government actors. Illinois is currently the only state that provides a private right of action. Massachusetts recently introduced a bill which appears to be modeled after BIPA, but goes even further, requiring companies collecting consumer’s personal information provide the individual data collection notice before or at time of collection, respond to opt out requests, and provide the individual with the right to access and/ or delete the collected data. One of the key differences between the Massachusetts bill and BIPA is that the bill expressly provides for an exception for businesses that collect or disclose their employees’ personal information, “so long as the business is collecting or disclosing such information within the scope of its role as an employer.” Unlike Illinois, this exception protects Massachusetts employers from potential voluminous class action lawsuits. Other states, including Alaska, Michigan, New York and New Hampshire have proposed laws like BIPA in that they provide for a private right of action and statutory damages. We expect to see an increasing number of other states propose similar legislation in the near future. WHAT SHOULD EMPLOYERS DO TO AVOID LITIGATION IN THIS AREA? If an organization uses biometrics for its timekeeping system, or any other purpose, it must make sure it is complying with BIPA (and other applicable state law), obtain necessary consent from its employees or customers and provide required written disclosures. Organizations should be mindful to only collect biometric information it truly needs. If the biometric data is stored by a third party, the company should be aware of that provider’s retention policy, security measures in place and data breach response policy. LM STORRS W. DOWNEY Storrs Downey is a founding attorney, capital member and chair of the Labor & Employment practice at Bryce Downey & Lenkov. Storrs concentrates his practice on defending employers against state and federal actions. He regularly advises businesses on a variety of employment issues, including biometrics and privacy in the workplace, anti-discrimination and anti- harassment compliance, ADA and FMLA compliance, independent contractor issues, reductions in force, handbooks and internal company policies. Inadditiontohisemployment practice, Storrs also defends medical malpractice, legal malpractice and complex tort liability claims, working closely with the firm’s General Liability and Workers’ Compensation practices. He has partnered with employers and insurance carriers for over 30 years. Storrs is a frequent lecturer and has written for numerous industry publications. He is a member of Claims and Litigation Management, Defense Research Institute, Illinois Bar Employment Law Division, Professional Liability Defense Federation and Risk & Insurance Management Society. Storrs is AV Preeminent Rated by Martindale-Hubbell and has been named a Leading Lawyer since 2012. FIRM PROFILE Bryce Downey & Lenkov LLC is a full-service law firmwith offices in Illinois, Indianaand Tennessee. Our expertise spans across several practice areas, providing transactional, regulatory and business solutions for clients across the nation. The firm’s continued growth is a result of an aggressive, results-oriented approach. Unlike larger law firms however, we do not face massive overhead and are able to charge more reasonable rates that both small and larger employers can more readily afford. We evolve with our clients, representing Fortune 500 and small companies alike in all types of disputes. Bryce Downey & Lenkov is a team of experienced and proactive attorneys that have been named Leading Lawyers, Super Lawyers, Rising Stars and AV Preeminent. Special Feature By Storrs W. Downey, Bryce Downey & Lenkov LLC 65 AUG 2019 | WWW.LAWYER-MONTHLY.COM