Illinois Appellate Panel Upholds Employer Defense Against Employee BIPA Claims: Union Employee BIPA Claims Preempted by Federal Labor Law

Consistent with several federal decisions, an Illinois Court of Appeals panel recently determined that a union employee’s claims against his employer under the Illinois Biometric Privacy Information Act (“BIPA”) were preempted by the Labor Management Relations Act (“LMRA”). In Walton v. Roosevelt University, 2022 IL App (1st) 210011 (1st Dist. 2022), a bargaining unit employee of the University brought a class action claiming the University violated various provisions of BIPA by using a biometric time-clock system to scan his fingerprints without first obtaining his informed written consent and by disclosing his biometric information to a third-party payroll service provider without his consent.     

The Illinois Appellate panel was asked to determine whether the claims asserted by the union employee were “preempted by the Labor Management Relations Act, which governs most disputes arising under collective bargaining agreements.” Walton v. Roosevelt University, 2022 IL App (1st) 210011 ¶8. Answering in the affirmative, the panel reasoned that since the timekeeping procedures were covered by the subject collective bargaining agreement, any dispute regarding the employer’s use of the biometric timeclock or the union’s consent to biometric data collection required the interpretation or administration of the collective bargaining agreement. Thus, the panel held that the LMRA prevents the union employee from usurping the bargained-for dispute resolution requirements in the collective bargaining agreement by first suing the University directly in court. 

Relying on a series of similar federal court decisions interpreting BIPA preemption under the LMRA, including the Seventh Circuit’s decision in Fernandez v. Kerry, Inc., 14 F.4th 644, 646-47 (7th Cir. 2021), the panel’s decision reinforces the strategy of dismissing BIPA claims brought by union employees in favor of the collective bargaining agreements’ alternative dispute and grievance procedures. This is a welcome reprieve for employers whose defenses at the pleading stage have been whittled down by recent decisions. 

Walton further solidifies key takeaways for Illinois employers with union employees: 

• Depending on the language in the collective bargaining agreement, BIPA claims by union employees are likely preempted by the LMRA. 
• Even if a collective bargaining agreement does not expressly address timekeeping procedures, the same may be a bargained-for subject if the collective bargaining agreement contains a broad management rights clause, as was the case for the agreements at issue in Walton and Fernandez.

• Union membership-specifically the amount of union employees-should also be taken into consideration while evaluating class certification and/or settlement. In fact, union membership was addressed in at least one settlement agreement (Bryant v. Loews Chicago, Case No. 1:19-cv-03195 (N.D. Ill. 2019), and presents an additional factor to gauge at different stages of employee BIPA Litigation.

Thompson Coburn’s employment attorneys are available to assist you and provide more information regarding the impact of this case and these issues.

Ryan Gehbauer and Zoe Spector are associates in Thompson Coburn's Labor & Employment group. Dremain Moore is an associate in Thompson Coburn’s Business Litigation group.