On February 17, 2023, the Illinois Supreme Court ruled that claims under the Biometric Information Privacy Act (“BIPA”) may accrue with each biometric scan and not just on an individual’s first scan.  Cothron v. White Castle System, Inc., 2023 IL 128004.

In Cothron, the plaintiff alleged that the employer failed to follow BIPA’s requirements in connection requiring employees to scan their fingerprints in order to access computer systems and pay stubs. When the case ascended to the Seventh Circuit, the employer argued that the plaintiff’s claims were untimely because the fingerprints were initially collected years before BIPA went into effect.  The employer asserted that only the first collection or scan of an individual’s biometric information could give rise to liability, as opposed to each subsequent scan used to “match” an individual’s fingerprint with the stored information.  The Seventh Circuit send this issue to the Illinois Supreme Court for resolution.

The Illinois Supreme Court rejected the employer’s argument, holding that BIPA violations may accrue with every subsequent scan of a fingerprint, not just the initial fingerprint capture.  The Court analyzed the “plain language” of the statute, particularly section 15(b), which provides that

No private entity may collect, capture, purchase, receive through trade, or otherwise obtain a person’s or a customer’s biometric identifier or biometric information unless it first obtains informed consent from the individual or the individual’s legally authorized representative.

740 ILCS § 14/15(b) (West 2018). The Court agreed with the district court’s analysis that

Each time an employee scans her fingerprint to access the system, the system must capture her biometric information and compare that newly captured information to the original scan (stored in an off-site database by one of the third parties with which White Castle contracted).

477 F. Supp. 3d 723, 732 (N.D. Ill. 2020).  In essence, according to the Court, every time an employee scans his or her fingerprint in order to compare it with the identifying scan, this counts as an additional “collection” for purposes of BIPA.

Key Takeaways

BIPA allows for statutory damages of up to $1,000 per negligent violation and up to $5,000 per intentional or reckless violation.  So it’s easy to see how the Illinois Supreme Court’s interpretation could lead to unusually significant damage awards if companies use biometric information as employee identifiers on a frequent basis.  Additionally, now that the Illinois Supreme Court has confirmed in a ruling earlier this month that BIPA claims have a five-year statute of limitations, this ruling could potentially incentivize individuals to delay making claims under BIPA until hundreds or thousands of individual violations have occurred. As a result, businesses that plan to collect biometric information should work with counsel to draft and implement BIPA-compliant policies and review current policies and practices.

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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.

Photo of Alexandra Oxyer Alexandra Oxyer

Alexandra “Alex” S. Oxyer is an associate in the Labor & Employment Law Department.

Alex concentrates her practice in complex employment litigation and employment law counseling, including advising clients on issues related to hiring and firing, workplace investigations, employment policies, and wage and…

Alexandra “Alex” S. Oxyer is an associate in the Labor & Employment Law Department.

Alex concentrates her practice in complex employment litigation and employment law counseling, including advising clients on issues related to hiring and firing, workplace investigations, employment policies, and wage and hour compliance. She regularly defends companies in all aspects of employment litigation, including claims of discrimination, harassment and retaliation, and breach of restrictive covenants (e.g., noncompetition and nonsolicitation). She has handled such cases before state and federal courts throughout the country, as well as before the U.S. Equal Employment Opportunity Commission, the Illinois Department of Human Rights, the Indiana Civil Rights Commission, the American Arbitration Association, and the Department of Labor.

Prior to joining Proskauer, Alex was a cum laude graduate from Indiana University Maurer School of Law. She previously practiced at a national management-side employment law firm, and in addition to her experience in private practice, Alex also worked as in-house counsel for a large public university. As in-house counsel, Alex investigated, managed, and resolved a wide range of disputes in the student affairs and employment areas, including single and multi-plaintiff discrimination, harassment, retaliation, and wage & hour issues.