Employee Fingerprinting and the Illinois Biometric Information Privacy Act: Class Action Suits Filed

By Jennifer A. Dunn and Melissa D. Sobota - Franczek Radelet P.C.

October 9, 2017

On September 29, 2017, a group of employees at Peacock Foods filed a class action lawsuit claiming that the company’s collection of employee fingerprints for time-tracking purposes violated the Illinois Biometric Information Privacy Act.

The Act, which was enacted in 2008, requires any private entity that collects biometric identifiers such as retina or iris scans, fingerprints, voiceprints or scans of head or face geometry, to have a written policy in place and available to the public that establishes a retention schedule and guidelines for the permanent destruction of such information when the initial purpose for its collection has been satisfied. The Act requires any private entity that collects biometric information to inform the individual in writing that the information is being collected, and to notify the individual of the purpose and length of time for doing so. The Act also requires that the private entity receive a written release executed by the individual authorizing the collection of the information.

The Act provides for liquidated damages of $1,000 or actual damages against any private entity that negligently violates its provisions, or $5,000 or actual damages against any private entity that intentionally or recklessly violates the Act, as well as reasonable attorneys’ fees and costs.

The employees at Peacock Foods claim that they are required to scan their fingerprints when they clock in and out, but further claim they were never given prior written notice of the purpose for the collection of this information, or the time period during which their information would be stored. They also allege that Peacock Foods failed to obtain written releases from employees authorizing the collection of their information.

This lawsuit follows two similar class action lawsuits filed in May of this year by employees of Roundy’s Supermarkets Inc., in which they claimed that Roundy’s collected their fingerprints without their consent in violation of the Act. In addition, employees of Superior Air-Ground Ambulance Service Inc., a Chicago-area ambulance service, filed a class action lawsuit in which they alleged that the company was collecting biometric information from its employees without their consent. These lawsuits remain pending in Illinois federal court.

As the use of biometric technology continues to expand, it is important for Illinois employers to understand the Act’s requirements in order to avoid litigation and potential damages. Prior to the collection of any biometric information from employees or customers, ensure that there is a written policy in place that complies with the Act’s provisions, and be certain to receive a written release prior to the collection of this information from any individuals.

We will continue to monitor these cases and provide updates as they become available.