Preemption Under Federal Labor Law Could Restrict Unionized Plaintiffs’ BIPA Rights

Post Authored by Paige Smith

Illinois’ Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq., has been specifically applied in employment. For example, biometric timeclocks requiring employees to use their fingerprint as a method of authentication to clock in and out are commonplace. However, the Seventh Circuit may completely prevent some plaintiff-employees from asserting their claims under BIPA. In Miller, et al. v. Southwest Airlines Co., on a consolidated appeal from the Northern District of Illinois, the court both affirmed dismissal of the plaintiffs’ claims and held that unionized plaintiff-employees’ BIPA claims against their former airline employers were preempted under the Railway Labor Act (“RLA”). 926 F.3d 898 (7th Cir. 2019). It stated that due to the necessity of evaluating whether the plaintiffs’ unions’ Collective Bargaining Agreements (“CBAs”) with their employers were compliant with BIPA, the proper venue for their BIPA claims was the Railway Labor Adjustment Board.

However, the court’s opinion does not consider the broader implications of its ruling. It simply states that the proper venue is in front of an adjustment board, but it does not reflect on the steps employees must take to present their claims in such a unique venue. If a plaintiff wants to assert her legal rights in a judicial forum, she files a complaint. However, the procedure for a unionized employee is not so simple. When claims are preempted under the RLA, instead of going to court, the individual must exhaust any grievance or arbitration procedure specified under the CBA. As a result, employees must begin by initiating a grievance through their union. This is where the trouble starts.

Individuals seeking to hold employers liable for BIPA violations are often former employees of that company. As former employees, they may no longer be members of the union they belonged to during the time they were employed by the entity they want to hold accountable. Unions have much less of an incentive to protect nonmembers or their interests, and generally, only represent nonmembers to maintain control over the administration of collective bargaining. BIPA is at most, if at all, tangentially related to the collective bargaining process. Unions have broad discretion to deny proceedings with grievances, and the cost of representing a nonmember is often greater than the benefit a union would receive from a positive adjudication for a nonmember employee. Because a union would likely not pursue the grievance, a unionized individual in the transportation industry who has had her rights under BIPA violated is unable to recover.

Because Miller only held that plaintiffs’ BIPA claims are preempted under the RLA, the holding and its practical effects should be restricted to unionized plaintiffs bringing BIPA claims against private entities in the transportation industry. However, Miller is commonly used as a defense in BIPA cases against plaintiff union members in any industry by analogizing preemption under the RLA to preemption under the Labor Management Relations Act or the National Labor Relations Act. While courts have not yet ruled on whether Miller should extend to industries covered under alternative labor legislation, it could create a chilling effect for unionized plaintiffs seeking statutory damages for violations of their rights under BIPA.

About the Author:

paige smithPaige Smith is currently a 3L at Chicago-Kent College of Law. At Chicago-Kent, she is the Executive Notes & Comments Editor of the Chicago-Kent Law Review. She spent the summer after her first year externing for Judge Franklin U. Valderrama in the Chancery Division of the Circuit Court of Cook County, where she assisted in drafting memorandum opinions and completed legal research. Paige is currently a law clerk at Stephan Zouras, LLP, where she assists on matters related to Biometric Information Privacy Act and wage and hour litigation.

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