What’s in Store for Illinois BIPA Claims?

Challenges to the Illinois Biometric Information Privacy Act may significantly impact the outcomes of future claims. Biometrics, or people’s unique biological traits, may include the data contained in retinal scans, fingerprints, voiceprints, and facial geometry. Using technological advancements, businesses and employers may put biometrics to work to aid in areas such as time management, security access, safety, and company health plans. In doing so, however, they must adhere to the laws regulating the collection and disclosure of such data.

What is the BIPA?

Enacted in 2008, the Biometric Information Privacy Act addresses businesses collecting biometric data. Among other rules, the act requires that companies collecting biometric data in Illinois obtain informed consent before collection, prohibits companies from profiting from such data, and creates a right of action for those harmed by BIPA violations. The act also grants a limited right to disclosure and creates protection obligations and data retention guidelines.

Support and Standing

A 2019 Illinois Supreme Court decision held that in and of itself, a violation of the BIPA in and of itself supports an employee or customer’s cause of action. Therefore, bare statutory violations of the act confer standing on plaintiffs in violation claims, helping to ease the path toward recovering damages for such personal privacy violations. Those harmed by BIPA violations may recover whichever is greater between $1,000 in liquidated damages or their actual damages for negligent violations, or the greater amount between $5,000 in liquidated damages or their actual damages for purposeful or careless violations of the BIPA.

Statute of Limitations

Federal courts and Illinois trial courts have to date held that the five-year catchall statute of limitations period applies to the BIPA. The act itself does not specify a statute of limitations for violation claims, creating some confusion regarding the time limit for filing such actions. Some have argued instead of the five-year catchall limitation, the act should instead have a two-year statute of limitations like other cases carrying statutory penalties or a one-year limit like other privacy claims.

Workers’ Compensation

The Illinois Supreme Court will soon decide whether the state’s workers’ compensation law preempts BIPA claims brought by employees against their employers. The Illinois Workers’ Compensation Act prohibits workers from suing employers for injuries suffered in the workplace. Businesses have attempted to argue that the existence of this law prevents employees from taking legal action for violations regarding the collection, use, and disclosure of workers’ personal biological traits.