Class action plaintiffs continue to bring actions against Illinois companies under the Biometric Information Protection Act (BIPA), which contains certain consent and disclosure requirements relating to the collection of biometric data and contains a private right of action. A majority of these cases have been brought against employers using fingerprint or handprint scanners to clock employee time.

While BIPA case law is still largely undeveloped, defendants are increasingly finding success in convincing courts to adopt their interpretation of the statute. For instance, several courts have dismissed BIPA class actions for lack of standing for a failure to plead sufficiently concrete harm. Significantly, an Illinois appellate court recently found that BIPA itself requires a pleading of actual harm to assert a claim under the statute; that decision is currently before the Illinois Supreme Court on appeal.

More recently, the Northern District of Illinois dismissed a BIPA class action complaint against an airline by finding that the employer’s use of fingerprint scanners to clock employees’ time was sufficiently related to the employment relationship that it required an interpretation of a relevant collective bargaining agreement. Therefore, the court dismissed the complaint by finding that the claim was preempted by the Railway Labor Act and was thus subject to mandatory arbitration.

TIP: Despite defendants’ early successes in defeating BIPA claims, the statute remains a popular tool for class action plaintiffs. Any organization collecting or storing biometric information in Illinois should assess its level of BIPA compliance to avoid potential liability.