18th Annual Workplace Class Action Report - 2022 Edition

670 Annual Workplace Class Action Litigation Report: 2022 Edition § 15(a) for "failure to institute, maintain and adhere to a publicly-available retention schedule;” (ii) violation of § 15(b) for "failure to obtain informed written consent and release before obtaining biometric identifiers or information;" and (i) violation of § 15(d) for "disclosure of biometric identifiers and information before obtaining consent." Id . at 836. Defendant filed a motion to dismiss for failure to state a claim, which the Court denied. First, the Court found that Plaintiff had standing to bring his § 15(a) claim as he sufficiently alleged a concrete and particularized injury from Defendant’s failure to delete his biometric data. The Court also determined that Plaintiff sufficiently asserted that Defendant provided support services by analyzing data collected from the devices, and thus it exercised some form of control over users’ biometric data and therefore was in possession of the data. The Court further opined that dismissal of Plaintiff’s § 15(b) claim would was not proper because he sufficiently alleged active steps by Defendant to collect, capture, or otherwise obtain the biometric data of device users. Id . at 835. The Court ruled that Plaintiff’s allegation that Defendant provide support services by analyzing data collected from its devices was enough to suggest that it had some form of control over users’ biometric data and therefore was in possession of the data to establish a claim under § 15(a). The Court further held that Plaintiff’s complaint also sufficiently alleged possession and disclosure to third-parties to state a claim for a violation of § 15(d). For these reasons, the Court denied Defendant’s motion to dismiss. Herron, et al. v. Gold Standard Baking, Inc. , 2021 U.S. Dist. LEXIS 69336 (N.D. Ill. April 9, 2021). Plaintiff, an employee, filed a class action alleging that Defendant utilized a timekeeping system to collect and retain her fingerprints without her informed consent in violation of the Illinois Biometric Information Privacy Act ("BIPA"). Defendant moved to stay the proceedings. The Court granted in part and denied in part the motion to stay. Defendant moved to stay the matter pending the Illinois Supreme Court’s decision in McDonald v. Symphony Bronzeville Park, LLC , Case No. 126511, on whether the Illinois Workers’ Compensation Act (“IWCA”) preempted claims under the BIPA brought by employees. Plaintiff asserted that two Illinois Appellate Court rulings had already rejected IWCA preemption. Defendant also argued that a stay was warranted pending two Illinois Appellate Court decisions in Tims v. Black Horse Carriers, Inc. , Case No. 20-0562, and Marion v. Ring Container Techs., LLC , Case No. 20-0184, which would decide whether BIPA claims are potentially subject to a one, two, or five-year statute of limitations. Id . at *6. Plaintiff argued that even if the one-year statute of limitations was found to be the applicable standard, her claims would still be timely under the American Pipe tolling doctrine. The Court reasoned that it need not determine whether Plaintiff’s claims would be subject to the American Pipe tolling doctrine because when ruling on a motion to stay, it was required to consider whether the stay will "simplify the issues in question" and "reduce the burden of litigation on the parties and on the Court." Id . at *10. The Court concluded that a stay would do both here. Finally, Defendant argued that a stay was warranted pending the Seventh Circuit’s decision on an interlocutory appeal in In Re White Castle System, Inc. , Case No. 20-8029 (7th Cir. Nov. 9, 2020), which would answer whether an employer violated the BIPA only when it first collects or discloses an individual’s biometric data without making the required disclosures, or whether a violation occurs each time the entity collects or discloses the data. Id . at *12. The Court further determined that a stay would be appropriate pending the White Castle decision because the outcome there could be dispositive of the timeliness issue here. The Court concluded that the stays would not unduly prejudice Plaintiff. For these reasons, the Court granted in part Defendant’s motion to stay. Hicks, et al. v. Evergreen Living & Rehab Center, 2021 U.S. Dist. LEXIS 198716 (N.D. Ill. March 8, 2021). Plaintiff, a certified nursing assistant, filed a state court class action alleging that she and other similarly-situated employees were required to clock-in and clock-out of work using a biometric attendance-tracking system that scanned and stored their fingerprints without complying with Illinois’s Biometric Information Privacy Act ("BIPA"). Id . at *2. Defendant subsequently removed the lawsuit on the grounds of federal-question jurisdiction under 28 U.S.C. § 1331 because Hicks’s BIPA claims were completely preempted by § 301 of the Labor-Management Relations Act ("LMRA"). Plaintiff was a Union employee and covered by the Union’s collective bargaining agreement ("CBA"). Plaintiff alleged that Defendant violated the BIPA by not creating or making publicly available a retention schedule and guidelines for permanently destroying employees’ fingerprint scans; failing to inform Plaintiff or its other employees in writing that their biometric information was being collected; failing to inform Plaintiff or its other employees of the purpose and length of time for which their biometric information was being collected, stored, and used; and not obtaining prior written authorization from Plaintiff or its other employees before collecting their biometric data. Id . at *5. Defendant contended that the Court had federal- question jurisdiction over Plaintiff’s state law BIPA claims because it was completely preempted by § 301 of the