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Biometric Privacy Claims Not Preempted by Illinois Law (1)

Feb. 3, 2022, 4:15 PMUpdated: Feb. 3, 2022, 6:22 PM

The Illinois Workers’ Compensation Act doesn’t bar claims for statutory damages under the state’s biometric privacy law, the Illinois Supreme Court ruled in a unanimous opinion filed Thursday.

The ruling opens the door for plaintiffs seeking to bring claims under the Biometric Information Privacy Act, which gives consumers and employees rights over how their voices, fingerprints, facial scans, and the like are collected and shared by companies.

The opinion upholds an Illinois Appellate Court decision that found Marquita McDonald’s BIPA claim against her former employer, nursing home Symphony Bronzeville Park LLC, wasn’t preempted by the Illinois Workers’ Compensation Act.

Attorneys representing Symphony didn’t immediately respond to a request for comment.

The “personal and societal injuries” caused by violations of BIPA are different in nature and scope from injuries compensable under the Illinois Workers’ Compensation Act, Justice David K. Overstreet wrote in the opinion.

“As such, the circuit court correctly reasoned that McDonald’s loss of the ability to maintain her privacy rights was not a psychological or physical injury that is compensable under the Compensation Act,” Overstreet wrote. “Likewise, the appellate court correctly held that a Privacy Act violation is not the type of injury that categorically fits within the purview of the Compensation Act and is thus not compensable under the Compensation Act.”

Overstreet went on to write that the plain language of BIPA supports the assertion that the legislature didn’t intend for the law to be preempted by the Illinois Workers’ Compensation Act.

BIPA, which was enacted later, defines the written release required by the Illinois Workers’ Compensation Act to include “‘a release executed by an employee as a condition of employment,’” Overstreet wrote.

BIPA mentions its own application in the employment context, further supporting the argument that the legislature didn’t intend for BIPA claims to be preempted by that law, he added.

“Thus, the legislature was aware that Privacy Act claims could arise in the employment context, yet it treated them identically to nonemployee claims except as to permissible methods of obtaining consent,” Overstreet wrote.

Case History

McDonald sued Symphony and several other Chicago-area long-term care facilities in 2017, arguing that they violated her BIPA rights by scanning her fingerprints as part of their timekeeping systems without first notifying her and seeking her consent.

The Illinois Appellate Court in September 2020 ruled that her claims weren’t barred by the Illinois Workers’ Compensation Act. It was the first state appeals court to weigh in on the preemption question, although Illinois federal courts and state circuit courts had previously reached the same conclusion.

The Illinois high court’s decision comes as state and federal courts consider other BIPA questions, including when claims accrue under the statute.

Overstreet was joined by Chief Justice Anne M. Burke and Justices Rita B. Garman, Mary Jane Theis, P. Scott Neville Jr., Robert L. Carter, and Michael J. Burke.

Edelson PC represents McDonald and the proposed class. Seyfarth Shaw LLP represents Symphony.

The case is McDonald v. Symphony Bronzeville Park LLC, Ill., No. 126511, opinion 2/3/22.

(Updates with additional reporting.)

To contact the reporter on this story: Jake Holland in Washington at

To contact the editors responsible for this story: Andrew Harris at; Renee Schoof at