The employer’s BIPA consent type can’t defeat litigation
Wednesday December 16, 2020
It becomes the privacy version of Paint by Numbers: A plaintiff files a suspected class action lawsuit against his employer alleging that the employer collected employees’ biometric information in violation of the Illinois Biometric Information Privacy Act (“BIPA”). Well, in the most recent permutation of the litany of BIPA litigation filed earlier this year, a federal court ruled that claims under BIPA should not be remitted to a state court and that a complaint met state pleading standards to withstand a motion for dismissal. Roberson v. Maestro Consulting Servs. Llc, 2020 US Dist. LEXIS 233868 (SD Fig. 2020).
The plaintiffs were employed by the defendants, a network of various nursing homes. In order to keep track of plaintiffs’ time and presence, defendants collected fingerprints or handprints and scanned them for time and attendance purposes. Plaintiffs filed a lawsuit in a state court alleging that the defendants’ practices were against BIPA. The defendants dismissed the dispute in federal court on the grounds that the lawsuit was excluded by the Labor Relations Act (“LMRA”) and that the plaintiffs’ BIPA claims had a “common core” of facts with other claims made in the litigation would have.
A quick detour – as readers of CPW already know (but for you beginners out there), BIPA requires, among other things:
- A private institution must create a protocol for storing and processing biometric data and make it publicly available.
- A private institution must first inform the subject in writing about the purpose of the data collection, the retention period of the data and the consent of the person concerned.
- This data must also be destroyed: (1) if the original purpose for collecting or obtaining such identifiers or information has been fulfilled or (2) within 3 years of the individual’s last interaction with the private unit (whichever comes first).
- Sales, leasing, dealings, or anything else that allows a private company to benefit from an individual’s biometric information is strictly prohibited, while disclosure, transfer, or other dissemination of an individual’s biometric information is restricted by law.
- Finally, private companies must protect biometric information from disclosure by “applying the appropriate standard of care in the private company industry. . . . [and] in a manner that is equal to or more protective of the manner in which the private entity stores, transmits, and protects other confidential and sensitive information. “
There were two motions to the court: (1) the plaintiffs motion to refer the case back to the state court, and (2) the defendants motion to dismiss the complaint for failure to comply with a recognizable demand. The court addressed both of them in turn.
Regarding the request for pre-trial detention, the court ruled that the defendants referred the case back to federal court in good time. Also, citing the Seventh Court of Appeal rulings in Bryant and Fox, the court found that plaintiffs had Article III (a requirement for the disputes to be heard by federal courts) in relation to their claims under Section 15 (b) of BIPA .
So much for the plaintiffs other BIPA claims were concerned, well, the Seventh Circuit has not yet addressed Article III, which stands for claims under Section 15 (d) of the BIPA (which requires companies to obtain an individual’s consent when disclosing or disclosing an individual’s biometric information spread). However, the court has adopted the reasoning of two District Courts in the Seventh Circuit who found that a plaintiff’s claims under Section 15 (d) meet the de facto infringement requirement of Article III. For another reason, the same result was achieved as with the claims of the plaintiffs according to § 15 (e) BIPA (“As with their claims according to § 15 (a) the specific damage to the plaintiffs was the illegal storage of their biometric data by the defendant because the defendants allegedly violated the standard of care in their industry and in the same or more protective way than the way in which the defendants store, transmit and protect other confidential and sensitive information ”) (emphasis in original).
For these reasons, and because the district court found federal jurisdiction under the Class Action Fairness Act to be correct, the court denied plaintiffs’ request for remand.
Regarding the motion to dismiss, the court rejected exhibits that were attached to the defendants’ motion, stating that plaintiffs are not entitled as each of those plaintiffs signed a “BIPA Consent Form”. The court stated that, even after taking into account these so-called “declarations of consent”, the defendants had not demonstrated that the plaintiffs had been informed and consented In front Your biometric information has been collected. Even if defendants provided such evidence, it would be critical to only some of the plaintiffs’ claims under BIPA (and would not result in the dismissal of the entire dispute at the pleadings stage).
So there you have it – another BIPA case remains with the federal court and survives the important motion to dismiss.
© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 351