Post authored by Haley Jenkins
In the hotly contested area of biometric privacy litigation, one buzzword keeps appearing: preemption. In an effort to avoid liability under the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq., many defendants have argued that certain federal statutes preempt BIPA entirely. But what exactly this might mean–and whether or not it’s true–requires a deeper dive into the specific statutes at issue. As most second-year law students could tell you, preemption occurs when one statute displaces a conflicting law. Preemption defenses to BIPA have included the Illinois Workers’ Compensation Act (“WCA”), § 301 of the Labor Management Relations Act (“LMRA”) and federal statutes regulating transportation such as: the Federal Railroad Safety Act (“FRSA”), the Interstate Commerce Commission Termination Act (“ICCTA”), the Federal Aviation Administration Authorization Act (“FAAAA”), and the Railway Labor Act (“RLA”).
But recent state and federal court opinions addressing whether the WCA, FRSA, ICCTA, or FAAAA preempt BIPA casts doubt on how far some preemption arguments may go. Courts that have considered whether the WCA preempts BIPA have held that the injury alleged in a BIPA case is not the type contemplated by the WCA. Judge Raymond W. Mitchell issued the first ruling about WCA preemption by certifying an Illinois Supreme Court Rule 308 interlocutory appeal in McDonald v. Symphony Bronzeville Park, LLC, et al. No. 2017-CH-11311 (Cir. Ct. Cook Cty. June 17, 2019). This case will give the Illinois Appellate Court an opportunity to finally determine whether the WCA preempts BIPA.
In the Northern District of Illinois, on October 31, 2019, Judge Matthew F. Kennelly denied a defendant’s motion to dismiss which argued, among other things, that the plaintiff’s BIPA claims were preempted by at least one, and potentially more, of three federal statutes. Rogers v. BNSF Railway Company, 2019 WL 5635180, at *1 (N.D. Ill. Oct. 31, 2019). The plaintiff in Rogers worked as a truck driver at BNSF railyards. At certain BNSF facilities, the plaintiff alleged he had to scan his biometrics–fingerprints or hand geometry, which are both “biometric identifiers” under BIPA–to verify his identity. The plaintiff alleged that BNSF collected his biometric data without adhering to BIPA’s requirements. The defendant argued in its motion to dismiss that the FRSA, the ICCTA, and/or the FAAAA preempted plaintiff’s claims. Id.
The Court disagreed, rejected the defendant’s contention and held that “BIPA has nothing to do with regulating rail transportation,” “does not refer to, and has no connection with, motor carrier services, rates, or routes, and it does not concern transportation of property,” and that the FRSA “does not on its face require collection of biometric information” and, therefore, does not “‘substantially subsume’” BIPA’s purpose. Id. at *2-4. Judge Kennelly further concluded that BIPA “is a generally-applicable statute that in this situation just happens to apply to a railroad.” Id. at *3. Accordingly, the Court held that BIPA did not conflict with any of the federal statutes cited by the defendant. Id.
Litigation on preemption arguments will undoubtedly continue because no higher court has yet addressed these issues. But, in the meantime, some courts have suggested a reluctance to preempt BIPA, due to its sensitive subject matter and the broad purpose for which it was enacted. See 740 ILCS 14/5.
 See McDonald v. Symphony Bronzeville Park, LLC, et al., No. 2017-CH-11311 (Cir. Ct. Cook Cty. June 17, 2019); Fluker v. Glanbia Performance Nutrition, Inc., No. 17-CH-12993 (Cir. Ct. Cook Cty. July 11, 2019); Robertson v. Hostmark Hospitality Group, Inc., et al., No. 2018-CH-5194 (Cir. Ct. Cook Cty. July 31, 2019); Mims v. Freedman Seating Company, No. 2018-CH-09806 (Cir. Ct. Cook Cty. Aug. 22, 2019); Soltysik, et al. v. Parsec, Inc., No. 2019 L 136 (Cir. Ct. DuPage Cty. Oct. 17, 2019); Fuentes v. Focal Point Exports, Ltd., No. 2019-CH-03890 (Cir. Ct. Cook Cty., Nov. 13, 2019); Carrasco, et al. v. Freudenberg Household Products, LP, No. 2019 L 279 (Cir. Ct. Kane Cty, Nov. 15, 2019).
 See 740 ILCS 14/10.
About the Author:
Haley litigates on behalf of Stephan Zouras, LLP clients in both class and individual litigation. A spirited advocate, Haley represents people in a broad spectrum of legal disputes ranging from unpaid wages and employee misclassification, to antitrust, consumer fraud, whistleblower actions, and qui tam cases. Haley joined the Stephan Zouras team as a law clerk in 2015 while attending law school. Haley graduated cum laude from Chicago-Kent College of Law in 2016, where she was a member of the Dean’s List, served as the Vice President of Fundraising for the Student Humanitarian Network, and was a two-time regional champion with the Chicago-Kent Trial Advocacy Team. Haley and her cases have been profiled by numerous media outlets including the Chicago Tribune, Crain’s Chicago, and FundFire.