07 Feb 2022

I&F has been following the case McDonald v. Symphony Bronzeville Park LLC. We first wrote about it here. It is a class action lawsuit involving the Illinois Biometric Information Privacy Act (BIPA). A quick refresher. BIPA laid out a set of rules and framework for private entities that use biometric data and identifiers. If the employer did not follow the rules and framework set forth by the statute, BIPA created a private right of action in state circuit court that allows individuals to recover liquidated damages of $1,000.00 or actual damages (whichever is greater) for negligent violations, and liquidated damages of $5,000.00 or actual damages (whichever is greater) for intentional or reckless violations. Plaintiffs may also seek recovery of reasonable attorneys’ fees and costs.

The floodgates are open for such lawsuits. A common defense to these lawsuits is that sections 5 and 11 of the Illinois Workers’ Compensation Act, otherwise known as the exclusivity provisions of the Act, preempt the recovery of damages in circuit court. The rationale is that the alleged injury (violation of BIPA) occurred in the course of employment and must therefore be adjudicated before the Workers’ Compensation Commission. The Supreme Court was tasked with evaluating this defense. The implications are huge. If the Workers’ Compensation Act did not preempt BIPA, the large number of class action lawsuits worth millions of dollars would be allowed to move forward in circuit court. These lawsuits have been put on hold pending this decision.

In an unanimous decision, the Supreme Court found that the Workers’ Compensation Act did not preempt BIPA and the plaintiffs may pursue their BIPA claims in circuit court. The Court first noted that the Workers’ Compensation Act generally provides the exclusive means by which an employee can recover against an employer for a work-related injury. However, the Court further noted that an employee can escape the exclusivity provision of the Workers Compensation Act if the employee can establish that the injury (1) was not accidental, (2) did not arise from his employment, (3) was not received during the course of employment; or (4) was not compensable under the Act. It is this fourth part that became the central argument of the opinion.

Citing Folta, the court held that whether an injury is compensable is related to whether the type of injury “categorically fits within the purview” of the workers’ compensation Act. In other words, whether the exclusivity provision bars an employee’s civil claims depends upon the nature of the injury because the exclusivity provisions, by their express language, only applies if the injury is one that is covered by the Compensation Act. The court found that a BIPA violation seeking liquidated damages is not the type of injury compensable in a workers’ compensation proceeding as the plaintiff’s loss of the ability to maintain her privacy rights was not a psychological or physical injury that is compensable under the Workers’ Compensation Act. Through

One key takeaway from the opinion: This opinion does not foreclose recovery under the Illinois Workers’ Compensation Act. The court found that the plaintiff’s alleged injury, violation of their ability to maintain privacy rights, is not compensable under the Act. However, as the concurring opinion suggests, a BIPA violation can be pursued under the Illinois Workers’ Compensation Act as long as the plaintiff alleges mental anguish (or some other psychological injury), a compensable injury under the Act first identified in Pathfinder and expanded by its progeny.