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Federal law trumps state biometric privacy law as BIPA appeal thrown out

Federal law trumps state biometric privacy law as BIPA appeal thrown out

Airlines are exempt from Illinois state law requiring explicit informed consent from employees to use their biometrics for time and attendance systems, as it is outranked by federal law governing airline labor relations, the Cook County Record reports the U.S. Seventh Circuit Court of Appeals has ruled.

Illinois’ Biometric Information Privacy Act (BIPA) has unleashed a torrent of law suits, many of them class actions, and many related to time and attendance systems. Plaintiffs in the case sought a class action against Southwest Airlines, which was previously thrown out at the District Court level.

In the unanimous opinion of the three-court appeals bench, the union holds status as a legally authorized representative for airline workers, which federal law grants to the union. State law cannot remove biometric collection consent from the union’s agreement with the airline, and BIPA does not attempt to do so, according to the ruling.

“That biometric information concerns workers’ privacy does not distinguish it from many other subjects, such as drug testing that are routinely covered by collective bargaining and on which unions give consent on behalf of the whole bargaining unit,” Judge Frank Easterbrook wrote.

Easterbrook also noted that the collective bargaining agreement between the union and the airline could include a BIPA violation, but that would be a matter for the dispute mechanisms outlined in the agreement.

Southwest will presumably use the same defense in a separate BIPA lawsuit brought against it in August of 2018.

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