Illinois: Good News and Bad News for Employers

By Victoria Purcell - McMahon Berger P.C.

May 21, 2026

Let's start with the good news.

In 2023, the Illinois Supreme Court created a near catastrophic situation for employers when it ruled that violations of the Biometric Information Privacy Act (“BIPA”) accrued each time an employer collected an individual’s biometric information without complying with BIPA’s notice and consent requirements. Cothran v. White Castle Sys., Inc., 216 N.E.3d 918, 928 (Ill. 2023). As a quick reminder, BIPA requires Illinois employers to give written notice to and obtain written consent from employees before collecting biometric data (fingerprints, iris scans, face scans, voiceprints, hand scans, DNA and any other unique biological information), maintain a public retention and destruction policy, securely protect the data, and never sell or improperly disclose it. Violations can lead to significant statutory damages and private lawsuits.

In response to the Cothran decision’s “near annihilative liability,” the Illinois Legislature amended BIPA in 2024 to eliminate these “per-scan” damages and replaced them with “per-person” damages so that repeated collection of the same person’s biometric information by the same method of collection, if violative of BIPA, would count only as one violation rather than repeated violations. 740 ILCS § 14/20 However, the Legislature did not specify whether that amendment would apply retroactively, leaving significant uncertainty for employers.

The Seventh Circuit has put the issue to rest by holding that the 2024 amendments DO apply retroactively to pending cases. Clay v. Union Pacific Railroad Company, 171 F.4th 975 (7th Cir. 2026).

The Seventh Circuit’s decision, however, does not mean employers in Illinois are off the hook. Liability under BIPA remains a real threat and employers must craft (and follow) a robust BIPA compliant notice and consent policy if choosing to utilize biometric information collection.

Now for the not-so-great news.

During the pandemic, a lot of employers initiated COVID screening requirements prior to employees beginning their shifts. In 2021, a group of Amazon distribution warehouse employees filed suit in the District Court for the Northern District of Illinois challenging the unpaid time they spent in that mandatory COVID pre-shift screening under the Fair Labor Standards Act (“FLSA”) and the Illinois Minimum Wage Law (“IMWL”). The District Court dismissed both claims, holding the Portal-to-Portal Act excluded such preliminary and postliminary activities from compensable time as long that those activities were not related to an employee’s principal job activities. Johnson v. Amazon.com Services, LLC, 2023 WL 8475658 (N.D.Ill. 2023). In so doing, the District Court noted that the IMWL incorporated the Portal-to-Portal Act because it mirrored the FLSA.

The plaintiffs appealed the dismissal of the IMWL claims to the Seventh Circuit Court of Appeals, asserting the IMWL provided broader protections than the FLSA. The Seventh Circuit certified the question of the exclusion of the preliminary and postliminary activities to the Illinois Supreme Court. Johnson v. Amazon.com Services, LLC, 142 F.4th 932 (7th Cir. 2026)

On March 19, 2026, the Illinois Supreme Court answered that question in Johnson v. Amazon.com Services, LLC, 2026 IL 132016 (Ill. 2026). The Court held that the IMWL “overtime compensation provision does not incorporate exclusion from compensation of employees’ preliminary or postliminary activities, as provided under federal Portal-to-Portal Act.” Id at *4. In so holding, the Court reasoned that the Illinois Department of Labor (“IDOL”) references some provisions of the FLSA but not others in defining terms. Id at *3. “IDOL defines ‘hours worked’ to include all time an employee is required to be on the employer’s premises, which contradicts the potential applicability of any such exclusion.” Id (emphasis in original) (“a plain reading of section 3a of the Wage Law, as well as the regulations promulgated by IDOL … reveals that that the General Assembly did not signify any intention to incorporate the preliminary and postliminary activities exclusions set forth in the [Portal-to-Portal Act].) Id at *4.

After Johnson, Illinois employers could face materially increased wage‑and‑hour risk for unpaid time spent on employer‑required activities before or after a scheduled shift, even when those activities would be non‑compensable under federal law. The Illinois Supreme Court held that the IMWL does not incorporate the federal Portal‑to‑Portal Act’s exclusion for preliminary and postliminary activities. As a result, federal compliance is no longer a safe harbor in Illinois.

Employers’ risks now may also include expanded compensable time exposure, increased exposure for class and/or collective actions from large groups of hourly employees, potential retroactive liability, and operational and timekeeping risk. The bottom line is that employer risk under the IMWL is now substantially broader than under federal law. Any activity that is required, controlled, or primarily for the employer’s benefit – even if occurring before or after a scheduled shift – can trigger wage obligations in Illinois.

What should an Illinois employer do? Immediately reassess pre- and post-shift requirements, timekeeping start and end points, policies borrowed from federal wage-and-hour guidance and potential exposure for class-wide claims.

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