Skip to Content
Logo
Menu
  • About Our Firm
  • Practice Areas
  • Our People
  • Learning Library
  • Corporate Transparency Act
  • Contact
  • Make A Payment

Perhaps Some Relief Under Illinois’ Biometric Information Privacy Act.

Perhaps Some Relief Under Illinois’ Biometric Information Privacy Act.

May 21, 2021

In 2008, Illinois passed the Biometric Information Privacy Act (“BIPA”). We’ve written about it here and here.

BIPA opened the flood gates to a wave of employee- based class actions in Illinois. In 2019, following the Illinois Supreme Court’s decision in Rosenbach v. Six Flags Entertainment Corp, this wave of filings became a deluge. In the 148 days following the Rosenbach decision, the Illinois Plaintiff’s bar filed nearly as many BIPA class action suits as they did in the ten years prior to the decision.

The Illinois legislature’s failure to amend BIPA since Rosenbach is a problem for employers. Four pending federal and state appeals may provide some relief. A favorable holding in any of these cases would reduce potential BIPA exposure for employers.

The Preemption Defense — McDonald v. Symphony Bronzeville Park LLC

In McDonald v. Symphony Bronzeville Park LLC, the Illinois Supreme Court will decide whether the Worker’s Compensation Act (“WCA”) preempts claims for statutory damages under BIPA. We believe the Court will not allow employers to use the preemption defense. After all, this is mostly the same court that decided Rosenbach in the first place.

McDonald is a case where a nursing home required an employee to provide her fingerprints for timekeeping purposes without adhering to BIPA’s consent and disclosure requirements. The nursing home argued that McDonald’s claims were barred by Illinois’ Workers ‘Compensation Statute (“WCA”). The appellate court ruled that statutory and liquidated damages were not barred by the WCA because the WCA protects workers from actual injuries, and Rosenbach held that plaintiffs need not have suffered actual damages to bring an action under BIPA.

Should the Court determine the WCA preempts BIPA claims, employers could have an almost complete defense against employee BIPA actions. A result like this is highly unlikely.

The Statute of Limitations Defense — Tims v. Black Horse Carriers, Inc. and Marion v. Ring Container Techs

In two other pending cases, Tims v. Black Horse Carriers, Inc. and Marion v. Ring Container Techs, Illinois appellate courts will decide whether BIPA claims are subject to a one, two, or five-year statute of limitations.

The text of BIPA does not include a statute of limitations. To date, Illinois trial courts have adhered to a five-year catchall limitations period. However, as defendants in Tims and Marion have pointed out, this five-year period does not apply if there is a statute of limitations that is “more specifically applicable.” 735 ILCS 5/13-205.

The defendant in Tims argues that because BIPA is essentially a privacy statute, BIPA should be subject to the one-year statute of limitations that other invasion of privacy claims carry under 735 ILCS 5/13-201. Alternatively, the defendant in Marion claims that because almost all BIPA actions demand statutory damages, a two-year statute of limitations is more appropriate under 735 ILCS 5/13-202.

In deciding these cases, Illinois’ appellate courts will settle which statute of limitations applies to BIPA claims and potentially offer employers a defense against claims filed years after alleged violations.

The Single Violation Defense — Cothron v. White Castle Systems, Inc.

In Cothron v. White Castle, the Seventh Circuit Court of Appeals will decide whether repeated collection of the same biometric information from the same employee constitutes multiple separate violations of BIPA.

BIPA does not define when a “violation” accrues. Cothron argues that an employer like White Castle who improperly collects and discloses an employee’s fingerprints iscommitting an ongoing violation. Conversely, White Castle argues that repeated conduct only gives rise to a single claim.

Employer Takeaways

It is quite possible, indeed probable, that all four decisions will be decided in favor of employees. BIPA will remain a thorn in the side of any employer that uses a digitized workplace. Illinois employers must concentrate on complying with BIPA’s notice provisions at the front end. Employers cannot rely on the courts to save them. The Illinois legislature will not act either.

Related Attorneys

Clingen Callow & McLean, LLC
Lisle Office
2300 Cabot Drive, Suite 500
Lisle, Illinois, 60532
Phone 630.871.2600
Geneva Office
21 North 4th Street
Geneva, Illinois, 60134
Phone 630.938.4769
Fax 630.871.9869
General Inquires [email protected]
  • facebook
  • linkedin

Contact Us

©2025 Clingen Callow & McLean, LLC. All rights reserved.

Law Firm Web Design by NMC

Manage Consent
To provide the best experiences, we use technologies like cookies to store and/or access device information. Consenting to these technologies will allow us to process data such as browsing behavior or unique IDs on this site. Not consenting or withdrawing consent, may adversely affect certain features and functions.
Functional Always active
The technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user, or for the sole purpose of carrying out the transmission of a communication over an electronic communications network.
Preferences
The technical storage or access is necessary for the legitimate purpose of storing preferences that are not requested by the subscriber or user.
Statistics
The technical storage or access that is used exclusively for statistical purposes. The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.
Marketing
The technical storage or access is required to create user profiles to send advertising, or to track the user on a website or across several websites for similar marketing purposes.
Manage options Manage services Manage {vendor_count} vendors Read more about these purposes
View preferences
{title} {title} {title}