Vendors not liable for employers’ biometric procedures as BIPA details challenged

Vendors supplying biometric solutions to employers for time and attendance tracking are not necessarily liable for damages under Illinois’ BIPA, a Cook County judge has ruled in dismissing a case against ADP Inc., according to the Cook County Record.

A 2017 potential class-action lawsuit against Chicago-based restaurant and nightclub development and management company Rockit Ranch Productions alleged the same kind of procedural violations as most BIPA lawsuits. It also named the third party vendor as an additional defendant, but Rocket Ranch was dropped as a defendant, leaving only ADP.

ADP then requested the case be dismissed, on grounds that BIPA does not apply to it, and Cook County Associate Judge David B. Atkins agreed.

“All of Plaintiff’s claims stem from Rockit’s requirement that employees participate in biometric scanning technology,” Judge Atkins wrote. “That Rockit obtained the technology from Defendant (ADP) does not remove Plaintiff’s case from existing within the context of his employment by Rockit. As Defendant (ADP) notes, to read BIPA as requiring that a third party provider of the biometric timeclock technology, without any direct relationship with its customers’ employees, obtain written releases from said employees would be unquestionably not only inconvenient but arguably absurd.”

The judge also ruled that the plaintiff did not establish that ADP “sold, leased, traded, or otherwise profited from anyone’s biometric information,” and that alleging the company’s technology allows for the dissemination of biometric data is not the same as alleging that it disseminated such data (which would be covered by BIPA).

The dismissal is without prejudice, meaning an amended complaint could still be filed up until a September 20 deadline.

Technology vendor Kronos has already cited the ruling in a brief filed to support a motion to dismiss a claim against it in Chicago federal court, the Record reports.

CSX loses dismissal decision

Meanwhile, CSX Intermodal Terminals Inc. is being sued by a truck driver for violating BIPAs informed consent rules, and transferring biometric data to technology vendors, Bloomberg Law reports.

CSX had sought the case’s dismissal, but a federal judge in the Northern District of Illinois ruled that the dissemination of biometric information gave the plaintiff standing even before the Rosenbach decision confirmed procedural violations create legal standing. CSX argued that Rosenbach is different because the plaintiff was the mother of a 14-year old who biometric data was collected from, but the judge noted that this distinction was not part of the Rosenbach decision.

The judge did side with CSX that the plaintiff had not established its actions were “willful and wanton.”

Facebook to try again with same argument

The Rosenbach ruling does not grant standing for cases in federal court, Facebook is arguing in an appeal to a federal appellate court, according to Digital News Daily.

Facebook is attempting to run the exact same argument as was rejected even prior to the Rosenbach ruling, namely that no harm is alleged by the plaintiffs, with the wrinkle that the standing established in state court does not apply to the federal venue.

A three-judge panel from the 9th Circuit Court of Appeals rejected the argument in August, but Facebook is seeking a review with the entire court.

The company recently made changes to its faceprints-based photo-tagging feature.

Article Topics

biometric data  |  Biometric Information Privacy Act (BIPA)  |  biometrics  |  data collection  |  Facebook  |  facial recognition  |  fiingerprints  |  Kronos  |  legislation  |  time and attendance