Bill addresses court decisions holding that exclusivity doesn’t bar BIPA claims

A bill before Illinois lawmakers this year would address recent court decisions finding that workers’ compensation exclusivity does not preclude claims for damages under the Biometric Information Privacy Act.

H.B. 5396 would declare that if a worker brings an action against an employer for violations of the privacy act, the worker’s entitlement to relief shall be determined under the state’s workers compensation laws.

The bill would also require that any action arising under the Biometric Information Privacy Act due to the actions of an employer be adjudicated in accordance with the state’s comp laws.

The 2008 Biometric Information Privacy Act regulates the collection and storage of identifiers such as iris scans, fingerprints, voiceprints and facial geometry. It also requires private entities to inform a person in writing when it is collecting or storing biometric information.

Parties that negligently violate the act can be ordered to pay $1,000 or actual damages, whichever is greater. The penalty for intentionally or recklessly violating the act is an award of $5,000 or actual damages, whichever is greater.

The Illinois Supreme Court, in a Feb. 3 ruling in McDonald v. Symphony Bronzeville Park, said employees aren’t limited to workers compensation as their exclusive remedy for injuries from the alleged mishandling of biometric information and that the main purpose of the workers compensation system is to protect injured workers until they can return to gainful employment.

“The personal and societal injuries caused by violating the privacy act’s prophylactic requirements are different in nature and scope from the physical and psychological work injuries that are compensable under” state law, the court said.

What’s more, the court said the plain language of the biometric privacy act supports the conclusion that lawmakers did not intend claims to be barred by work comp exclusivity.

The bill was referred to the House Judiciary Committee on Wednesday.

This article was first published in Business Insurance.

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