In a recent decision regarding an employee’s claims for violations of Illinois’ Biometric Information Privacy Act (“BIPA”), the United States Court of Appeals for the Seventh Circuit asked the Illinois Supreme Court to provide much-needed clarification on the accrual of BIPA violations. See Cothron v. White Castle System, Inc., Case No. 20-3202, 2021 U.S. App. LEXIS 37593 (7th Cir. Dec. 20, 2021).
Enacted in 2008, BIPA regulates the use, collection, and handling of biometric identifiers including retina or iris scans, fingerprints, voiceprints, or records of hand or face geometry, by private entities including employers. Among other things, BIPA prohibits the collection of biometric identifiers without consent. BIPA provides a private right of action to individuals aggrieved by violations, which can result in liquidated damages of up to $5,000 per violation.
A former White Castle employee, Latrina Cothron, brought a class action complaint alleging White Castle unlawfully collected, used, stored and disclosed employees’ biometric data in violation of BIPA. Ms. Cothron alleged that, beginning in 2007, White Castle began capturing employees’ fingerprint data and disclosing it to third parties without employees’ consent. White Castle moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), arguing that Ms. Cothron’s claims accrued in 2008 when BIPA was first enacted.
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