Class Action BIPA Rulings Further Successful Preemption Challenges
Defendants in class actions alleging violations of the Illinois Biometric Information Privacy Act are seeing momentum shift in their favor in the courts this year. Blank Rome LLP attorneys say unionized employers should take steps during the collective bargaining process to preserve the ability to assert a preemption challenge in the event the employer’s biometrics practices are tested in court.
Relying on a successful preemption defense, Sky Chefs Inc., an airline catering service company, recently defeated a biometric privacy lawsuit claiming it improperly collected employees’ fingerprints for time/attendance purposes without first providing notice, receiving consent, or publishing its retention and destruction schedules.
Larry Frisby, a former Sky Chefs driver at O’Hare International Airport, sued on behalf of himself and other similarly-situated Sky Chefs employees for alleged violations of the Illinois Biometric Information Privacy Act (BIPA) and negligence, among others.
A federal district court held that because Frisby worked under a collective bargaining agreement (CBA) during his time with the company, he was required to pursue his BIPA and negligence claims against his former employer before an adjustment board—and not in federal court—resulting in the dismissal of the entire action.
This case and results in a number of other BIPA class actions indicate the preemption defense can be an effective tool for companies defending lawsuits alleging mere technical/procedural BIPA violations, and unionized employers should ensure the proper steps are taken during the collective bargaining process to preserve the ability to assert a preemption challenge in court.
Momentum Shifts for Defendants in 2020
After facing several sizeable setbacks in 2019, defendants in BIPA class actions have seen the momentum shift in 2020, with courts issuing a string of favorable decisions on several key issues and defenses. Many such victories have come as a result of successful preemption challenges—essentially requiring union-represented employees whose employment is governed by a CBA to resolve their BIPA disputes exclusively via their union’s grievance process.
The Frisby decision continues the trend of favorable treatment of the preemption defense in BIPA litigation involving employees working under CBAs, and further demonstrates the ability of defendants to successfully defeat such suits by unionized workers through the assertion of this robust defense.
At the same time, Frisby also establishes that—in addition to serving as a mechanism to kick BIPA claims out of court—the preemption doctrine can be used to procure dismissals of related common law negligence claims.
Frisby is by no means the first BIPA action to be dismissed based on a preemption challenge. Rather, Frisby is at least the fourth BIPA case in 2020 alone to fall based on this defense following the Seventh Circuit Court of Appeals’ decision in Miller v. Southwest Airlines Co. (2019).
In Miller, the Seventh Circuit held an adjustment board—not a federal court—was required to decide if Southwest Airlines’ union had consented to the use and collection of employee biometric data.
The Miller court reasoned the question of consent necessarily involved an interpretation of the CBA, and a dispute about the interpretation or administration of a CBA must be resolved by an adjustment board under the Railway Labor Act (RLA)—as there is “no room for individual employees to sue under state law,” in such circumstances.
In addition to Frisby, the same federal court dismissed each of the following cases on preemption grounds: Crooms v. Southwest Airlines Co., Peatry v. Bimbo Bakeries Inc. and Gray v. Univ. of Chicago Medical Center Inc.
Also significant, while Frisby (along with Crooms) was decided in the context of the RLA, Peatry and Gray were premised on preemption in the context of Section 301 of the Labor Management Relations Act (LMRA). Thus, the preemption defense applies not only to airline and railroad defendants, but arguably to any company whose employees are subject to a CBA at the time the purported BIPA violations took place.
Ultimately—as demonstrated by Frisby—the preemption defense can be an effective tool for companies defending lawsuits alleging mere technical/procedural BIPA violations, as it can be used as an early challenge to defeat these actions by establishing that resolution of a plaintiff’s BIPA claims require interpretation of a CBA—meaning the claims are preempted.
Steps for Unionized Employers
Importantly, however, unionized employers should ensure the proper steps are taken during the collective bargaining process to preserve the ability to assert a preemption challenge in the event the employer’s biometrics practices are tested in court.
As an initial matter, employers should give unequivocal, advance notice to union representatives of any intent to incorporate the use of biometric data into their operations.
Employers should also thoroughly address the issues of BIPA notice and consent during collective bargaining negotiations—especially with respect to the union’s consent, on behalf of the represented employees, for the employer to collect and use the workers’ biometric data for business purposes.
Issues of notice and consent should also be addressed in the employer’s written CBA with the union. Employers should ensure clear, unequivocal language is included in the CBA establishing that the union has consented to the company’s use of its employees’ biometric data for business purposes.
Approached properly, unionized companies that leverage the benefits of biometrics to add value to their business operations can provide themselves with a powerful defense against BIPA class actions in the event they are so targeted.
“Class Action BIPA Rulings Further Successful Preemption Challenges,” by Jason E. Reisman, Jeffrey N. Rosenthal, and David J. Oberly was published in Bloomberg Law on September 10, 2020.