As we have previously written about here, here, and here, the Illinois Biometric Information Privacy Act (BIPA) has generated some high profile litigation in recent years. The Illinois Supreme Court’s last opportunity to consider one of the country’s most protective laws concerning biometric data came in 2019 in its decision in Rosenbach v. Six Flags Entertainment Corporation, which we wrote about here. Recently, the Illinois Supreme Court has granted permission to appeal another potentially impactful decision interpreting BIPA.

BIPA was enacted in 2008 to help regulate the collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information. The BIPA defines “biometric identifier” as “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.” It defines “biometric information” as “any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual.” The BIPA provides for fines of $1,000 to $5,000 for each violation.

On January 27, 2021, the Illinois Supreme Court granted leave to appeal the Illinois Court of Appeals for the First District’s recent decision in McDonald v. Symphony Bronzeville Park LLC, 2020 IL App (1st) 192398. The McDonald case considered the very specific, yet important, issue of whether the exclusivity provisions of the Illinois Workers’ Compensation Act preempted claims statutory damages under BIPA. In its decision, the First District ruled that the Illinois Workers’ Compensation Act, and specifically its exclusive remedy provisions do not bar claims for statutory damages under BIPA.

In its decision, the First District examined the nature of injuries sought to be addressed by the Workers’ Compensation Act and BIPA. The Court reasoned that the Workers’ Compensation Act seeks to provide remedies to workers that have sustained actual, physical injuries. The BIPA, in contrast, provides statutory, liquidated damages to employees who suffer injuries to their rights of privacy, even in the absence of a physical injury. The First District explained that the BIPA is a prophylactic law meant to have a preventative and deterrent effect while the Illinois Workers’ Compensation Act is “a remedial statute designed to provide financial protection for workers that have sustained an actual injury.”

This distinction in purpose and nature of injuries addressed, the Court concluded, means that the injuries remedied by BIPA’s statutory damages are not the “type of injury that categorically fits within the purview of the Compensation Act.” As a result, employees could continue to pursue BIPA damages against their employers without such claims being preempted by the Illinois Workers’ Compensation Act. At the time of the First District’s ruling, many in the Illinois legal community anticipated that this case would be ripe for consideration by the Illinois Supreme Court.

The Illinois Supreme Court will now decide whether the McDonald court correctly determined that BIPA is not preempted by the Illinois Workers’ Compensation Act. It also gives the court another opportunity to interpret the scope of BIPA after its Rosenbach decision from a few years ago.

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