The Illinois Biometric Privacy Act (BIPA) requires all Illinois companies to notify and obtain consent when collecting biometric information. In a new BIPA case, the Illinois Appellate Court found that employees of the Four Seasons Hotel in Chicago who had brought a class action suit against the hotel were not required to pursue arbitration as sought by the Four Seasons. The arbitration clause signed by each employee required that “wage and hour” violations were to be decided by an arbitrator, and not in court. Each BIPA violation (which can be multiple times a day) subjects an employer to $1000 for negligent violations, or actual damages, if greater and $5000 or actual damages, if greater, for intentional violations, plus attorney’s fees and costs.
The Court held that BIPA violations were not covered by the “wage and hour” violations clause in the mandatory arbitration agreement, even though the violations occurred as a result of using fingerprint biometrics to keep track of hours worked, and therefore wages. The court reasoned that the claims were not based upon wage and hour violations as expressed in numerous state and federal wage and hour laws, and did not involve improperly denied earned compensation payments. Rather, the sole violations alleged were limited to specific violations of BIPA designed to protect privacy. The First District noted that BIPA is a privacy law which applies to any entity, whether they are an employer or not, and to violations that occur in a workplace or elsewhere. Accordingly, its privacy protections cannot be limited to wage and hour violations only, and therefore the hotel’s employees could proceed in as a class action.
This Four Seasons case highlights the importance of compliance with BIPA and having a well crafted mandatory arbitration agreement to ensure claims are subjected to arbitration. We have extensive experience in structuring and litigating arbitration submissions. Call us if you would like to discuss matters on a confidential basis.