Union Workers in ‘Uncharted Territory’ on Illinois Privacy Law

The Illinois Supreme Court has virtually shut the door on unionized workers’ lawsuits for alleged violations of a plaintiff-friendly state biometric privacy law, even as it set up messy proceedings when those workers try to bring claims in arbitration.

Lawsuits alleging violations of the state’s Biometric Information Privacy Act are preempted if the worker who sued is covered by a collective bargaining agreement with a broad management rights clause, the state high court recently ruled. That leaves BIPA claims to the dispute resolution process set forth in the union contract—typically grievance arbitration.

But the justices provided scant guidance on what makes a management rights provision broad enough to trigger preemption or how arbitrators should handle claims of biometric privacy violations in a process meant for alleged violations of specific sections of a collective bargaining agreement, attorneys said.

“There’s no real roadmap in the decision on what we should be doing in these cases,” said union-side lawyer Jonathan Karmel of the Karmel Law Firm.

Employment class action litigation under Illinois’ biometric privacy law has surged as companies more frequently use fingerprint, facial recognition, and palm print technology for timekeeping and other workplace functions. The law’s requirements include disclosing the purpose of collecting the information, obtaining permission, and publishing data retention or destruction policies.

Damages for BIPA violations can add up, which was seen in a $228 million judgment last fall for a class of 45,000 BNSF Railway Co. truck drivers who sued the company for collecting employee fingerprints without consent.

But the Illinois Supreme Court’s recent decision in Walton v. Roosevelt University appears to take away most unionized workers’ ability to bring such lawsuits in court. Nearly 800,000 workers in Illinois were represented by unions in 2022, the third most behind California and New York, according to US Labor Department statistics.

Federal Law Preemption

The Walton decision was relatively thin—containing just over four pages of analysis—in part because it essentially affirmed two prior rulings by the US Court of Appeals for the Seventh Circuit finding that BIPA claims were preempted by federal labor law, attorneys said.

The three opinions follow the same logic, which hinges on BIPA permitting unions to give consent, and timekeeping and other procedures involving biometric data being bargaining topics. That means BIPA claims are preempted by federal labor law because determining whether a union consented through a management rights provision depends on an interpretation of a collective bargaining agreement, according to the rulings.

Yet it’s still an “open question” how unionized workers in Illinois can enforce their biometric privacy rights, said Mara Baltabols, a plaintiffs’ attorney at Fish Potter Bolaños PC.

“That question should be explored by legal representatives who are involved with unions and the collective bargaining process because unionized employees still deserve the protections of BIPA,” said Baltabols, who co-authored an amicus brief that a Teamsters affiliate filed on behalf of the worker in the Walton case.

Arbitration Muddle

Arbitrators are responsible for deciding disputes over whether biometric privacy claims must go through a collective bargaining agreement’s dispute resolution process—usually grievance arbitration.

But what happens to such allegations in arbitration goes into “uncharted territory,” and will depend on the language of the union contract at issue and the individual arbitrator on the case, said Martin Malin, a veteran labor arbitrator, retired professor, and founder of Chicago-Kent College of Law’s Institute for Law and the Workplace.

Arbitrators are deeply split on whether they have the authority to find violations of laws external to the contract or if they’re limited to finding violations of the contract, Malin said. Most take the view that they don’t have that power, he said.

When unionized workers aren’t allowed to bring a BIPA claim in an arbitration, then they’d have to allege some violation of the contract for their employer’s use of biometric data.

But winning a biometric privacy claim in arbitration—whether it’s based on BIPA or a violation of the statute—won’t yield the rich settlements and damage awards seen in class action litigation, labor and employment attorneys said. The remedy would most likely be an order for the employer to stop collecting the biometric data and bargain with the union if they want to resume, lawyers said.

The precedents on BIPA preemption leave room for unions to go to court on behalf of the workers they represent in the rare instances when that’s allowed by collective bargaining agreements, said Brandon Wise, an attorney with Peiffer Wolf Carr Kane Conway & Wise LLP, which represents plaintiffs in multiple BIPA lawsuits.

“For now, there are no more lawsuits under BIPA for union workers unless the union is willing and able to step in and bring the case,” Wise said. “This is one of the few times when membership in a union seemingly takes away rights that the general public has.”

Biometric Bargaining

The impact of the Walton decision will carry into future union-employer negotiations, attorneys said.

Contract talks in Illinois will likely include a focus on the breadth of the management rights provision, and potentially a separate section on timekeeping or other rules, policies, and procedures that use biometric data, they said.

The Walton decision also gives unions leverage to negotiate for strong biometric privacy protections—or other concessions—in future contracts.

“Getting that broad management rights clause that will hopefully cover timekeeping and other BIPA issues now becomes more valuable for employers,” said Amy Moor Gaylord, co-chair of the labor law practice at management-side firm Akerman LLP.

Unions should also aggressively push back when employers unilaterally implement anything implicating biometric information, said union-side attorney Travis Ketterman of McGann Ketterman & Rioux.

“Employers can’t brush off unions if they still want the protection of Walton,” he said. “From today until they get a new CBA, that gives unions the right to say, ‘You can’t unilaterally implement, we have a right to that information.’”