As readers of CPW know, the Illinois Biometric Information Privacy Act (“BIPA”) is a frequently litigated data privacy statute. Given the potential business-ending consequences of a putative BIPA class action, it is also a frequently cited example as to why other states should not enact comprehensive privacy or biometric legislation with a broad private right of action. Earlier this week an appellate panel in Illinois held that members of the collective bargaining unit surrendered their individual right to bargain with their employer about timekeeping procedures, even where those timekeeping procedures also included the collection and use of the employees’ biometric information and otherwise fell within the purview of BIPA. Walton v. Roosevelt Univ., 2022 Ill. App. LEXIS 83 (Ill. Ct. App. Feb. 22, 2022).

In Walton, the Court determined that Plaintiffs and putative class members claims were preempted under the Federal Labor Relations Act. Plaintiff had filed suit seeking damages from his employer under BIPA for its alleged collection, storage, use, and dissemination of his biometric data. Plaintiff alleged that his employer collected and used his biometric data without complying with the Privacy Act’s informed consent requirements and without developing and following the required retention policies. Plaintiff also alleged that his employer disclosed his biometric data to a third-party payroll service without his consent.

The employer moved to dismiss, arguing Plaintiff’s...

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