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Biometric Information Privacy Act-Getting Stranger And Stranger

By now, every Employer in the State of Illinois is aware of the Illinois Supreme Court Decision in the Rosenbach v. Six Flaggs Entertainment Corporation and the State Supreme Court interpretation that, under the context of the Illinois Biometric Privacy Act, a Plaintiff does not need to show an "actual injury" to process a claim, merely establishing that the Employer has not complied with the requirements of the Act." Those requirements are of informing Employees in writing of the specific policy for the collection of Biometric data; providing a retention schedule and guidance for permanent deletion of Biometric Information and, most importantly, procuring from the involved Employee a written release authorizing the collection of Biometric Information. If these procedures are not followed, the Employee would have a claim. As well, based on newspaper reports and an article written by this author for the Illinois Client Update, the State Legislature is considering "amending the Biometric Information Privacy Act to remove the private cause of action and make the Act solely enforceable by the Illinois Attorney General. Whether or not that Amendment will pass the Illinois Legislature is subject for debate since the Plaintiff's Lawyer's Bar seems to have a very close rapport with the Democratic Majority in the State House and Senate.

There have been in Illinois (both Circuit Court and Federal Court) a number of cases that have attempted to raise bars or impediments to the on-going litigation flood under the Biometric Information Privacy Act (there are over 250 cases pending as of the date of this article), and one of those bars has been recently struck down by the Illinois Appellate Court, First District.

In Liu v. Four Seasons Hotel, Ltd., the Defendant Employer attempted to have the litigation dismissed by alleging that the two (2) named Plaintiffs, Tony Liu and Cathy Li, had signed an Employment Agreement requiring that "all wage and hour violation claims" among others (employment discrimination, harassment as related to employment or employment termination) be submitted to Arbitration. The Illinois Circuit Court (Cook County Circuit Court-Honorable Franklin U. Valderrama, Presiding) had dismissed the Employer's attempt to compel arbitration and the Illinois Appellate Court-First District supported that dismissal.

In essence, the Court found that the Employer had opted to use biometric data solely for the purposes of timekeeping and that type of action does not make the violation a "wage and hour violation". In essence, because an employer choses to use biometric data (i.e., fingerprint, hand scan, etc.) for a timekeeping system does not transform a claim alleging violation of the Biometric Information Privacy Act into a wage and hour claim. The Court decided that wage and hour claims involve allegations against an Employer that the Employer has wrongfully withheld compensation and/or failed to pay the Employees overtime rates and/or compelled Employees to work "excess hours". That being the case, the mere use of Biometric Information (i.e., fingerprints) to keep track of hours worked did not meet the normal definition of a wage and hour claim subject to the Arbitration Clause.

As the author has suggested in other articles dealing with the Biometric Information Privacy Act, it is an absolute necessity that every Employer in the State of Illinois comply with the requirements of the Biometric Information Privacy Act to avoid the heavy potential cost of litigation!

Questions? Contact attorney Walter J. Liszka in our Chicago office at (312) 629-9300 or by email at [email protected].

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