A hotel employee brought a civil suit in federal district court against her employer, alleging violations of the Biometric Information Privacy Act (or “BIPA”), but her employer asserted that she should have filed a worker’s compensation claim instead, arguing that the Illinois Worker’s Compensation Act (or “WCA”) preempted the employee’s federal BIPA lawsuit. See WCA does not preempt employee’s BIPA lawsuit. Illinois Workers’ Compensation Law Bulletin, Volume 29, Issue 8, June 25, 2021, page 8. The case discussed in the article, Ibarra v. Prospera, LLC, 29 ILWCLB 88 (N.D. Ill. 2021), involved a hotel maid that was ordered by her employer, a hotel chain, to have her fingerprint scanned and saved in the hotel’s security database, to enable her to use the hotel’s timeclock and time-tracking system. The employee then filed her aforementioned BIPA suit in federal court against her employer, alleging that the hotel failed to create and implement a proper retention schedule for use and storage of the employee’s biometric information, that the hotel also obtained and then stored and/or saved her biometric data without a proper release or permission to do so beforehand, and that the hotel further used the employee’s aforesaid information without obtaining her permission to do so as well. The hotel then moved to dismiss the lawsuit, claiming that the employee’s BIPA action was preempted by the WCA, and also that the WCA was the sole and exclusive remedy of the employee in this situation. However, the federal court disagreed with the employer and denied its motion, holding that higher courts in Illinois have held that BIPA injuries are not the kind of injury for which a claimant would be able to find compensation under the WCA (and moreover, that the decisions of the higher state courts on this issue have continued to bear this point out). Moreover, none of the arguments in the employer’s briefs refuted or changed the analysis by the U.S. District Court on the preemption question. The decision by the federal court is a sensible and logical one, in that the WCA is only meant to provide compensation to claimants who are actually physically and/or psychologically injured while in the course of their employment, due to a work-related risk, and further that the WCA preempts any concurrent personal injury claims brought by claimants against their employers (unless the claims fall within certain, carefully delineated exceptions), while injuries incurred under BIPA are of the kind that are more in the nature of violation of privacy and/or damage to one’s reputation, and are not physical in nature. Thus, the WCA may shield employers from some types of lawsuits, but not all kinds.
Attorney Matthew Ludwinski
See WCA does not preempt employee’s BIPA lawsuit, Volume 29, Issue 8, June 25, 2021, at page 8.