18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 677 the motion to stay, finding that since the statute of limitations was not at issue, reversals in either Tims or Marion would not dictate the disposition. Accordingly, the Court denied Defendant’s motions. Nseumen, et al. v. Dal Global Services, Inc. , 2021 U.S. Dist. LEXIS 195566 (N.D. Ill. Oct. 10, 2021). Plaintiff, an airport baggage handler, filed a class action alleging Defendant violated various provisions of the Illinois Biometric Information Privacy Act (“BIPA”). Defendant filed a motion to dismiss pursuant to Rule 12(b)(6), which the Court denied. Plaintiff asserted that Defendant’s biometric fingerprint scanning and time-tracking devices disseminated information derived from its scans of his biometric identifiers to others, including vendors for timekeeping, data storage, and payroll, without informing employees of this in writing. Plaintiff alleged that Defendant: (i) failed to provide written advance notice of the collection and storage of biometric information; (ii) failed to inform him of the specific purpose for the collection of his biometric information; (iii) failed to inform him of the length of time for which his biometrics were being captured, collected, stored, and used; (iv) failed to obtain a written release; (v) failed to establish a publicly available retention schedule detailing how long the biometrics were stored and/or guidelines for permanently destroying them; (vi) failed to obtain consent to disclose or disseminate the biometrics; and (vii) illegally profited from his biometrics. Id . at *3. Defendant argued that Plaintiff’s BIPA claims were preempted by the Airline Deregulation Act. The Court rejected Defendant’s argument. It held that that since the BIPA did not expressly refer in any way, shape, or form to airline-related services and there was no indication that the BIPA’s requirements had any impact on Defendant, let alone a significant impact to trigger preemption. In addition, the Court rejected Defendant’s contention that Plaintiff’s claims were barred by the Illinois Workers Compensation Act (“IWCA”), which makes workers’ compensation under the IWCA the "exclusive remedy" for "accidental injuries arising out of and in the course of the employment." Id . at *4. The Court noted that other case law authorities had uniformly rejected similar arguments regarding BIPA claims by employees. The Court also found that Plaintiff sufficiently stated a viable BIPA claim to survive dismissal. The Court held that Plaintiff’s allegations that Defendant collected and possessed his biometric data without establishing a proper retention schedule for how long data will be stored and without destruction guidelines were both plausible and sufficient to state a claim for violation of § 15(a). Id . at *5-6. For these reasons, the Court denied Defendant’s motion to dismiss. Quarles, et al. v. Pret A Manger (USA) Ltd. , 2021 U.S. Dist. LEXIS 79053 (N.D. Ill. April 26, 2021). Plaintiff, an employee, filed a class action alleging that Defendant’s fingerprint scanning system violated the Illinois Biometric Information Privacy Act (“BIPA”) by collecting and storing her biometric information without issuing proper notices, obtaining written consent, or disclosing its retention and destruction policies. Defendant filed a motion to stay the action pending the resolution of an action before the Illinois Supreme Court addressing preemption and a pending action in the Seventh Circuit regarding the accrual of BIPA claims. Defendant also filed a motion to dismiss, arguing that Plaintiff’s claims were preempted, time-barred, and that she failed to state a claim. The Court denied both motions. Plaintiff asserted that Defendant utilized a fingerprint scanner for purposes of clocking-in and clocking-out of work, that it did not inform employees about its biometric collection and storage practices, that she did not consent to use of her fingerprints and never provided the company with a written release to collect, store, or use her unique biometric information, and that it did not have a retention schedule or destruction policy for biometric identifiers and information and failed to adhere to a retention schedule and delete biometric information. Id . at *4. Defendant argued that the Illinois Workers’ Compensation Act (“IWCA”) preempted any claims under the BIPA. The Court rejected that argument. It found that BIPA injuries are not the kind of intangible injuries compensable under the IWCA. Alternatively, Defendant argued that the Court should stay this action pending the Illinois Supreme Court’s decision resolving the question of preemption in McDonald v. Symphony Bronzeville Park, LLC , Case No. 126511 (Ill.). However, the Court opined that it was unlikely that the Illinois Supreme Court would rule that the IWCA preempted the BIPA, and therefore, since Defendant would be unlikely to succeed on the merits of its preemption argument, a stay pending a ruling in McDonald was not warranted. In addition, the Court determined that because Plaintiff asserted a breach of the BIPA’s informational requirements, and not the publication of private information, Illinois’s one-year statute of limitations would not apply. The Court reasoned that since Plaintiff was claiming that Defendant violated the BIPA’s informed-consent regime, the harm she alleged concerned her inability to control information, and therefore the two-year statute of limitations would apply. The Court ruled that since neither the one-year nor two- year statute of limitations related to the cause of action, it must apply the default statute of limitations in Illinois of five years. Accordingly, the Court concluded that a stay pending the decision in the Seventh Circuit action