Comp act does not bar claims for biometric violations

The exclusivity provisions of the Illinois Workers Compensation Act do not bar a worker’s claims for statutory damages for violating her rights under a state biometric privacy law, an appellate court held Friday.

In McDonald v. Symphony Bronzeville Park LLC, the Illinois Court of Appeals, Fifth District unanimously answered that a class of workers could proceed with their claims of violations of the Illinois Biometric Information Privacy Act and their request for statutory damages.

Marquita McDonald filed a class action against her employer, Symphony Bronzeville Park LLC, alleging that she was required to provide biometric information by scanning her fingerprint for the company’s time clock system. She charged that this requirement violated the Biometric Information Privacy Act by negligently collecting their biometric information without informing them in advance in writing of the purpose and length of time for which their fingerprints were being collected, stored and used; providing a publicly available retention schedule and guidelines for permanently destroying the biometric data; and obtaining a written release from employees prior to the collection of their fingerprints. The class sought injunctive relief, attorney fees and statutory damages of $1,000 for each violation.

Symphony Bronzeville moved to dismiss the complaint, arguing that Ms. McDonald’s claims were barred by the exclusivity provisions of the IL Workers Comp Act, which was denied by a circuit court. The company then sought clarification and certified a question to the Illinois Court of Appeals.

The court noted that the legislature passed the privacy act, which was enacted in 2008, to regulate the “collection, use, safeguarding, handling, storage, retention and destruction of biometric identifiers and information” and provides a private right of action for those affected by a violation of the act, along with liquidated damages of $1,000 or actual damages for negligent violations and $5,000 for intentional violations.

The court held that it failed to see how a claim by an employee for damages under the privacy act “represents the type of injury that categorically fits within the purview of the Compensation Act.”

As a result, the appellate court certified the question in the negative and remanded the case back to the circuit court.

This article was first published in Business Insurance.

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