Background on BIPA
Illinois employers collecting biometric information for timekeeping purposes have been assaulted by class action lawsuits brought under the Illinois Biometric Information Privacy Act (BIPA). Typically, plaintiffs in these actions seek five years of damages for claims that employers collected biometric information through fingerprinting or face screening without issuing a public policy declaring the use and retention of these records and without first providing notice and receiving the employees’ consent. BIPA does not expressly include a statute of limitations for the filing of these actions, leading plaintiffs to argue they should be governed by Illinois’ five-year catch-all statute of limitations. For years, BIPA employer defendants have attempted to limit their damages using many defenses, including preemption under the Illinois Workers’ Compensation Act and arguing for smaller classes using shorter statutes of limitations, like the one-year limitations period applicable to “actions for slander, libel or for publication matter violating the right of privacy.” Unfortunately for these defendants, the Illinois Supreme Court just removed this possible defense.
Tims v. Black Horse Carrier
On February 2, 2023, the Illinois Supreme Court answered the certified question of whether BIPA actions are governed by the one-year limitations period for violation of privacy claims, or the five-year catch-all limitations period for all other personal injury actions without a statutorily defined statute of limitations. In its long-awaited decision in Tims v. Black Horse Carrier, 2023 IL 127801, the Supreme Court held the five-year catch-all limitations period should apply.
The lower reviewing court had split the difference, finding two different statutes of limitations should apply to BIPA claims:
- The one-year statute of limitations for alleged privacy violations involving a “publication,” and
- The five-year catch-all statute of limitations for all other BIPA claims
The Supreme Court rejected this approach, holding that because the BIPA statute itself does not contain a statute of limitations, all BIPA claims should fall under the five-year catch-all statute of limitations, regardless of whether the alleged violation of privacy stemmed from a “publication.”
This result disappoints Illinois BIPA defendants who had hoped the shorter limitations period would apply to reduce the sizes of classes of potential plaintiffs. With damages of $1,000 to $5,000 per violation per class member, the size of a class matters can matter greatly. The Tims decision significantly increases the exposure to liability for Illinois BIPA defendants.
Last year, the Supreme Court in McDonald v. Symphony Bronzeville Park LLC, 2022 IL 126511, held BIPA employment claims were not preempted by the Illinois Workers’ Compensation Act. This decision erased one defense for BIPA defendants. Still to be decided is Cothron v. White Castle Syst., Inc., Supreme Court Docket No. 128004. In that case, the Illinois Supreme Court has been asked to answer another certified question posed by the Seventh Circuit Court of Appeals: Do damages under BIPA accrue every time an employee scans their fingerprint at work or just for the first violation when the fingerprint information was first recorded?
With the statute of limitations debate now settled by the Tims decision, BIPA classes will include five years of claimants. Already, millions of dollars have been paid to plaintiffs in BIPA actions filed throughout the State. For several years, Illinois legislators have introduced bills in the General Assembly to revise BIPA, including to eliminate the private right of action which has led to the explosion of class actions, but these bills have stalled in legislative session. With the Supreme Court’s latest pronouncement, it is likely there will be renewed interest in legislation not only to eliminate BIPA’s private right of action but also to add a reasonable limitations period contained within the text of the statute.