On February 3, 2022, the Illinois Supreme Court issued a long-awaited, seminal ruling under the Illinois Biometric Information Privacy Act (BIPA). The court, in McDonald v. Symphony Bronzeville Park, LLC, held that the Illinois Workers' Compensation Act (IWCA) does not pre-empt workplace claims arising under BIPA when no actual injury is alleged.
The Illinois Supreme Court reviewed de novo a certified question:
Do the exclusivity provisions of the Illinois Workers' Compensation Act ("IWCA") bar a claim for statutory damages under Illinois' Biometric Information Privacy Act ("BIPA") where an employer is alleged to have violated an employee's statutory privacy rights under BIPA?
In holding that the IWCA does not pre-empt claims arising under BIPA when no actual injury is alleged, the court rejected an often relied upon argument in employers' motions to dismiss BIPA claims that because the alleged claims arose during the course and scope of the plaintiff's employment, those claims are preempted by the IWCA. It ultimately held that "McDonald may pursue her Privacy Act claims on her behalf and on behalf of the putative class in an action in the circuit court, rather than through a claim before the Workers' Compensation Commission, because McDonald's and the putative class's alleged injury is not one that categorically fits within the purview of the [Compensation] Act." The court went on to discuss the types of injuries that are compensable under the IWCA and observed, among other things, that "whether a different balance should be struck under the Privacy Act given the category of injury is a question more appropriately addressed to the legislature."
Justice Michael Burke issued a noteworthy concurring opinion in which he observed that had McDonald not dropped claims for mental anguish, the exclusivity provisions of the IWCA would have barred her claims. He observed that "this opportunity for gamesmanship in pleading highlights the incongruity of applying the Compensation Act's exclusivity provisions to Privacy Act claims that allege actual injuries but not to those that allege technical violations."
The Illinois Supreme Court's ruling comes despite multiple amici briefs warning that this ruling "stands to expose employers to potentially devastating class actions that can result in financial ruin." Multiple cases throughout the State of Illinois have been stayed pending the McDonald decision, and we anticipate those stays will start to be lifted.
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