Employees May Seek Damages for Violations of the Illinois BIPA

The Illinois Supreme Court held earlier this month (Feb. 3) in McDonald v. Symphony Bronzeville Park (2022 IL 126511) that the exclusivity provisions of the state’s Workers’ Compensation Act do not bar claims for statutory damages under the Illinois Biometric Information Privacy Act where the employer is alleged to have violated an employee’s privacy rights provided by the act. Employers be warned.

The ruling was handed down in a proposed class action brought by a former employee, Marquita McDonald, against Symphony Bronzeville Park, LLC. McDonald alleged that the company’s collection, storage and use of her fingerprints as part of a timekeeping system was a BIPA violation. She maintains that she was not provided with nor did she sign a release consenting to storage of her information, and was not informed why the company needed to store the data or for how long.

Symphony Bronzeville argued that the case was bared by the exclusive remedy provisions of the Workers’ Compensation Act, saying it was the only remedy available to workers who suffer accidental injuries in the workplace. Employees do not have a common-law or statutory right to recover civil damages from their employer for such injuries, the company argued.

The state Supreme Court disagreed with the employer, holding that the suit alleges injuries that do not categorically fit within the purview of the Workers’ Compensation Act, therefore it is not barred by its exclusive remedy provisions. McDonald will now continue her pursuit of damages on behalf of the proposed class. BIPA provides for damages of $1,000 per negligent violation.

This was not the only BIPA case before the state’s high court. As our partner Jennifer Oliver discussed on the MoginRubin Blog on Jan. 11, the court is considering a question certified to it in Cothran v. White Castle. There, the question is whether each transmission of biometric data is a separate BIPA violation. That question remains before the court.


Edited by Tom Hagy for MoginRubin LLP.

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