Illinois appellate court holds that Workers' Compensation Act does not preempt claims for statutory damages under Biometric Information Privacy Act

On Sept. 18, 2020, the Illinois First District Appellate Court issued an important decision on an issue of first impression in Illinois appellate courts, holding that the Illinois Workers’ Compensation Act does not preempt claims for statutory damages under Illinois’ Biometric Information Privacy Act (BIPA). Unless it is overturned or withdrawn, the First District’s decision appears to eliminate a potential defense to BIPA claims.

The case, McDonald v. Symphony Bronzeville LLC, No. 1-19-2398, involved a plaintiff, Marquita McDonald, who brought a putative class action against two entities, Symphony Bronzeville Park, LLC (Bronzeville) and Symcare Healtcare LLC. McDonald alleged that she was a former employee of Bronzeville, and that Bronzeville had required her and other employees to provide biometric information by scanning their fingerprints in connection with a fingerprint-based timekeeping system. She alleged that defendants’ fingerprint collection practices violated BIPA in various ways. Defendants moved to dismiss, arguing that the claims of the putative class were barred by the exclusive remedy provision of the Workers’ Compensation Act. The circuit court denied the motion to dismiss, but certified for interlocutory appeal the question of whether the Workers’ Compensation Act preempts BIPA claims for statutory damages.

The First District affirmed the circuit court. After discussing the origin and purpose of the Workers’ Compensation scheme, the First District explained that several exceptions exist to the exclusive-remedy provision of the Workers’ Compensation Act, including where the plaintiff’s injury is not compensable under the Workers’ Compensation Act. The court held that this exception applies to claims for statutory damages under BIPA. In reaching that conclusion, the court noted that, although the Workers’ Compensation Act is designed to provide employees with prompt and equitable compensation for actual injuries, BIPA allows plaintiffs to recover $1,000 in statutory damages (or $5,000 if the violation is intentional or reckless) regardless of whether the plaintiff has suffered actual damages. The court held that BIPA’s statutory damages, “available without any further compensable actual damages,” do not “represent[] the type of injury that categorically fits within the purview of the Compensation Act, which is a remedial statute designed to provide financial protection for workers that have sustained an actual injury.”

The First District’s ruling, which is the first time an Illinois appellate court has considered the issue, likely will further limit the potential defenses available to BIPA defendants, particularly in the vast majority of BIPA cases where plaintiffs seek to recover statutory damages. However, because the certified question was limited to claims for statutory damages, the First District emphasized that it expressed no opinion on whether the Workers’ Compensation Act preempts claims for actual damages under BIPA, And, because the First District based its holding on the fact that a BIPA plaintiff may recover statutory damages without proof of an actual injury, it’s unclear whether courts would reach the same holding in the rare instances where plaintiffs seek actual damages. Defendants facing BIPA claims for actual damages should continue to consider whether they may have a viable preemption defense under the Workers’ Compensation Act.