On November 17, 2020, the Seventh Circuit held that allegations that a defendant violated Section 15(a) of the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS § 14/1, et seq.—which requires an employer that collects biometric information from its employees to develop, publicly disclose and comply with a data-retention schedule and guidelines for permanent destruction of the biometric information—can constitute an “injury in fact” sufficient to confer Article III standing.  Fox v. Dakkota Integrated Systems, No. 20-cv-2872.  (We have blogged about BIPA-related standing issues, including the Bryant decision, here, here and here).

Background

Earlier this year in Bryant v. Compass Group USA Inc., the Seventh Circuit found that while the plaintiff employee could proceed under BIPA’s Section 15(b), she lacked Article III standing because she failed to plead a particularized injury-in-fact resulting from her former employer’s alleged failure to develop a publicly available data-retention policy pursuant to Section 15(a) of BIPA, reasoning that such duties are “owed to the public generally, not to the particular persons whose biometric information the entity collects.”  958 F.3d 617, 619, 626 (7th Cir 2020).  Until the recent decision in Fox, courts interpreted the Bryant decision to hold that all Section 15(a) plaintiffs lack standing to sue in federal court.

On April 29, 2019, Plaintiff Fox filed a putative class action in Illinois state court alleging BIPA violations premised on her former employer’s alleged failure to: (i) develop, publicly disclose and comply with a policy for the retention and destruction of biometric information pursuant to Section 15(a); (ii) obtain her informed consent prior to collecting her handprint in connection with its time-keeping system pursuant to 15(b); and (iii) obtain consent to disclose her biometric information to third parties pursuant to 15(d).  Dakkota removed Fox’s suit to federal court, where it successfully obtained a dismissal of the Section 15(b) and (d) claims in light of a Seventh Circuit ruling that similar BIPA claims by unionized airline employees were preempted by the Labor Management Relations Act (“LMRA”)), given that Fox was represented by a union while Dakkota employed her.  The Section 15(a) claim, however, was remanded to Illinois state court for want of Article III standing pursuant to the Bryant decision.  Dakotta appealed this remand decision to the Seventh Circuit.

The Seventh Circuit’s Reversal

The Seventh Circuit reversed, concluding that the Section 15(a) claim alleged a sufficiently concrete and particularized injury-in-fact because, unlike the plaintiff in Bryant, Fox alleged that Dakkota not only failed to develop and publicly disclose a data collection policy, but also unlawfully retained her biometric information after she was no longer employed.[1] The Seventh Circuit explained that:

Just as section 15(b) expressly conditions lawful collection of biometric data on informed consent, section 15(a) expressly conditions lawful retention of biometric data on the continuation of the initial purpose for which the data was collected. . . .  It follows that an unlawful retention of a person’s biometric data is as concrete and particularized an injury as an unlawful collection of a person’s biometric data.

Fox, at 15.

Implications

The Fox decision opens a path to federal court that was previously thought closed to employers defending Section 15(a) BIPA claims.  Indeed, it may provide employers with the option of removing such claims to federal district court where they can seek to leverage several employer-friendly BIPA decisions (including potential LMRA preemption with respect to unionized employees) and an arguably more stringent class certification analysis under Federal Rule of Civil Procedure 23.

 

[1] Section 15(a) requires an entity’s policy to provide for permanent destruction of biometric information either when the initial purpose of the collection has been served, or within three years of the individual’s last contact with the entity—whichever occurs first. 740 ILCS § 14/15(a).  Fox alleged that the purpose behind Dakkota’s collection and retention of her handprint for its timekeeping system was served when her employment concluded.

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Photo of Edward Young Edward Young

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all…

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all aspects of employment law, with a concentration on litigating complex employment disputes of all types before federal and state courts throughout the country, the U.S. Equal Employment Opportunity Commission, state and local human rights commissions and arbitral tribunals (e.g., FINRA and AAA).  In particular, Eddie has successfully litigated employment-related disputes alleging breach of non-compete agreements, theft of trade secrets, discrimination, sexual harassment, whistleblower retaliation, wage and hour violations, including employee misclassification claims, breach of contract, defamation, fraud and other business-related torts.  Eddie has obtained a world-wide injunction to enforce a client’s non-competition restriction on a former executive, successfully defended a client through summary judgment and appeal against retaliation claims brought by a former General Counsel, represented Fortune 500 companies in defense of high-profile harassment claims associated with the #metoo movement, and provided representation to several professional sports leagues.  He also has significant appellate experience, including successfully representing clients before the U.S. Circuit Court of Appeals for the First, Second and Seventh Circuits, as well as before the United States Supreme Court.  Eddie often draws on his litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful training, counseling and developing robust employment policies.

Working in a wide range of industries, Eddie represented clients in food services, financial services, medical devices, telecommunications, higher education, sports, retail, real estate and others.

Eddie has been recognized as “One to Watch” by Best Lawyers in America since 2021 and as a “Rising Star” by Super Lawyers since 2017. He also regularly advises clients, writes and speaks on cutting-edge legal issues, including the use of Artificial Intelligence in the workplace, and legal issues arising from the collection and use of employee biometric information.

Eddie maintains an active pro bono practice, including on-going representation of a certified class of approximately 65,000 visually disabled Chicagoans in litigation challenging the City’s lack of accessible pedestrian crosswalks.  Eddie is also a member of the Firm’s Pro-Bono Committee and is a three-time recipient of the Firm’s “Golden Gavel” award for his significant pro bono contributions.

Prior to joining Proskauer, Eddie was a cum laude graduate from Loyola University Chicago School of Law. He also obtained a Master’s Degree in Human Resources and Industrial Relations from Loyola University Chicago Graduate School of Business. He began his practice at a national management-side employment law firm, and has also worked in the corporate human resources department of a national tax consulting firm and as a Fellow with the Illinois Human Rights Commission.

Photo of Hannah Morris Hannah Morris

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers…

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers in counseling matters, such as drafting employment handbooks and researching workplace policies.

Hannah earned her J.D. from the University of Virginia School of Law. While in law school, she served as a Research Assistant for Professor Richard J. Bonnie working on matters related to juvenile justice. Additionally, she interned for the Office of the Public Defender for Arlington County and the City of Falls Church.

Prior to law school, Hannah was a Teach for America Corps member teaching Fourth Grade in Eastern North Carolina.

Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.