As Employers with operations within the State of Illinois are keenly aware, the Illinois Biometric Information Privacy Act (740 ILCS 14/1 et seq.) prohibits a business from collecting and/or capturing and/or otherwise obtaining a person's "Biometric Identifier" or "Biometric Information" unless it satisfies specific policy creation and notice and consent from the involved Employees to collect the information.
The current statute, passed in 2008, also provides a "private right of action" for any individual aggrieved by the negligent violation of the Biometric Information Privacy Act to recover liquidated damages of $1,000 or actual damages whichever is greater and if it is an intentional or reckless violation of the law, additional liquidated damages of $5,000 or actual damages, whichever is greater. This "private right of action" has taken on a new significance with the finding by the Illinois Supreme Court in Rosenbech v. Six Flaggs Entertainment Corporation-January 2019 that an aggrieved person need not have sustained actual damages beyond technical violations of the Biometric Information Privacy Act in order to pursue legal action. This has certainly "increased the number of class action cases filed under the Biometric Information Privacy Act.
It seems that the state legislature, as of February 2019, is attempting to modify the Biometric Information Privacy Act to amend the law and delete language creating the private right of action and instead provide that any violation that results from the inappropriate collection of biometric information by an Employer is subject to the enforcement authority of the Illinois Department of Labor. If, in fact, Senate Bill 2134 is passed, future litigation will involve "government enforcement", not private lawsuits!
Regardless of whether it passes, the passage of the Amendment will not be a "Get Out of Jail Free Card" for Employers who are currently involved in BIPA Class Action Litigation (over 200 lawsuits that are currently pending). Of course, it, if passed, would have huge ramifications in minimizing further legal liability.
WHAT EMPLOYERS SHOULD DO: Employers should make every effort to comply with the BIPA Law in creating a clear policy and written informed consent from involved Employees regardless of "future legislation". That is complete protection from any legal entanglement!
Questions? Contact Attorney Walter J. Liszka in our Chicago office at (312) 629-9300 or by email at [email protected].