University, ruling that the Labor Management Relations Act (“LMRA”) preempts the Illinois Biometric Privacy Information Act (“BIPA”). Following recent BIPA decisions that have ramped up the risk of liability for employers (see more information on Tims and White Castle), the decision in Walton helps to curb BIPA exposure for employers with broad management rights clauses in their collective bargaining agreements.Background on Walton v. Roosevelt UniversityThe case involves a dispute over the enrollment of employees’ hand geometry scans in a timekeeping system used by Roosevelt University. In March 2019, the plaintiffs filed a class-action complaint against Roosevelt, alleging that the University’s collection, use, storage, and disclosure of the biometric information was in violation of several sections of BIPA Sections (a), (b), (d). In response, Roosevelt moved to dismiss, arguing that the BIPA claims were preempted by Section 301 of the Labor Management Relations Act, 1947 (“LMRA”) (29 U.S.C. § 185 (2018)). Because Walton was a member of a union during his employment, he had agreed to and was bound by the collective bargaining agreement (“CBA”) between his union and the University. Accordingly, the University argued that the manner by which employees clock in and out is covered by a broad management-rights clause and required grievance procedures under the CBA.In support of its motion to dismiss, the University cited the Seventh Circuit’s decision in Miller v. Southwest Airlines Co., 926 F.3d 898, 903 (7th Cir. 2019), which held that federal labor law preempts BIPA claims when the claims require interpretation or administration of a CBA. However, in May 2020, the circuit court denied the University’s motion to dismiss, finding Miller to be distinguishable from the facts at issue in this case. The court’s opinion noted that a preemption argument is not relevant here because a BIPA claim “is not intertwined with or dependent substantially upon consideration of terms of [a] collect

The Illinois Supreme Court in Walton v. Roosevelt University, 2023 IL 128338 (Mar. 23, 2023), unanimously affirmed dismissal of the putative class action arising under the Illinois Biometric Privacy Information Act, 740 ILCS 14/1 (“BIPA”), concluding that federal labor law preempted BIPA claims brought by unionized employees covered by a collective bargaining agreement (“CBA”). Consistent with Seventh Circuit federal court decisions in support of federal preemption, the Walton high court’s ruling specifically provides that Section 301 of the federal Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, preempts BIPA claims asserted by union employees (or bargaining unit employees) covered by a CBA in Illinois state courts. Therefore, the federal preemption defense may be used to foreclose these unionized employees from bringing BIPA claims in state and federal courts, including on a class action basis.In Walton, the representative plaintiff was a member of a union subject to a CBA, which included a broad management-rights clause, during his employment with Roosevelt University. The putative class alleged that Roosevelt University used scanning devices to enroll employees’ hand geometry scans for timekeeping purposes, but Roosevelt University failed to fulfill BIPA’s Section 15 requirements. However, under the LMRA, the provisions of the CBA should govern, and even if “biometric” data is not expressly discussed within the CBA, a broad management-rights clause along with provisions regarding employee timekeeping and grievance resolution procedures may be sufficient to preclude BIPA l

On March 23, 2023, the Illinois Supreme Court issued an opinion in Walton v. Roosevelt University, 2023 IL 128338 that affirms the validity of an important preemption defense for employers facing litigation under the Illinois Biometric Information Privacy Act (“BIPA”). Specifically, the Court ruled that Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (“LMRA”) preempts BIPA claims brought by bargaining unit employees covered by a collective bargaining agreement (“CBA”).BIPAApproaching its 15-year anniversary, BIPA has become the most litigated biometric privacy statute in the nation. The Illinois Legislature passed BIPA in 2008 to “regulat[e] the collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information,” and provided for a private right of action as a means of enforcement. BIPA sets forth a series of restrictions and requirements for how private entities collect, retain, disclose, and destroy “biometric identifiers,” including fingerprints, retina or iris scans, voiceprints, and scans of hand or face geometry, and information that is derived from biometric identifiers (i.e., “biometric information”). At the highest level, these restrictions and requirements impose the following obligations:§ 15(a): Development of a publically available written policy, which establishes a

We share news of a significant defense victory before the Illinois Supreme Court in a claim involving the Illinois Biometric Information Privacy Act (BIPA). In a case argued by Hinshaw partner John Ryan, the Supreme Court handed down the first employer-friendly decision in any BIPA case it has considered. The issue before the Court was whether "Section 301 of the Labor Management Relations Act (29 U.S.C. §185) preempt Privacy Act claims (740 ILCS 14/1) asserted by bargaining unit employees covered by a collective bargaining agreement?"In plain English, the Court had to determine whether federal labor law governs the resolution of a BIPA claim, and would a BIPA plaintiff, either individually or as a class representative, have to litigate that claim through the grievance and arbitrations mechanisms of a collective bargaining agreement (CBA). The Court answered the certified question in the affirmative. The Court held that "[g]iven the language in the CBA and the LMRA, it is both logical and reasonable to conclude any dispute must be resolved according to federal law and the agreement between the parties."Plaintiff was a member of a collective bargaining unit. Pursuant to the CBA, the Plaintiff’s union was the sole and exclusive bargaining agent for the bargaining unit. Instead of grieving the matter with his union pursuant to the terms of the CBA, the Plaintiff filed a class action lawsuit i

However, importantly, the court’s ruling was narrowly limited to the certified question regarding the applicable statute of limitations.Fernandez, et al. v. Kerry, Inc.On Sept. 20, 2021, a mere six days after hearing oral argument, the United States Court of Appeals for the Seventh Circuit affirmed a district court decision to dismiss lead plaintiff Maximo Fernandez’s class action BIPA case. The Seventh Circuit agreed with the district court that Fernandez’s suit was preempted by §301 of the Labor Management Relations Act (LMRA), 29 U.S.C. §185, because resolution of the case depended on interpretation of the collective-bargaining agreements between the defendant, Kerry, Inc., and the plaintiffs’ union. The court relied on its prior opinion in Miller v. Southwest Airlines Co., which held that portions of the Railway Labor Act akin to §301 prohibit workers from directly bargaining with their employers about clocking in and out.

The arbitrator determined that the grievance was arbitrable, rejecting Tecnocap’s argument that the grievance was untimely and should be denied or dismissed on procedural grounds, pointing to the parties’ past conduct of inattentiveness to grievance deadlines as evidence of a waiver of such deadlines. The arbitrator also ruled that Tecnocap did not have “just cause” to terminate the employee because it improperly assessed him with a ninth point.Tecnocap filed an action in the U.S. District Court for the Northern District of West Virginia under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to vacate the arbitrator’s award, and the union filed an action under the same provision to enforce the arbitrator’s decision, which it alleged Tecnocap had refused to follow.The district court found Tecnocap failed to present evidence that would warrant overturning the arbitrator’s award, including any evidence that the award: (i) was the product of the arbitrator’s bias; (ii) ignored the evidence in favor of the arbitrator’s own brand of “industrial justice”; or (iii) altered the language of the collective bargaining agreement.Tecnocap then appealed, arguing that the district court should have concluded that the arbitrator’s award did not draw its essence from the collective bargaining agreement and therefore should have been vacated.

It has its own unique enforcement provisions in section 502 (29 U.S.C. § 1132) that are deceptively short but have spawned four decades of disputes over what may or may not be a topic of litigation and the available damages. As the Supreme Court has long recognized, the statute’s enforcement provisions are a unique marriage of the common law of trusts and Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. See, e.g., Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987); Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989).

In this case, Justice LaVecchia wrote for a unanimous Court. The issue was whether plaintiff’s whistleblower claims under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14, were preempted by either of two federal statutes, section 301 of the Labor Management Relations Act, 29 U.S.C. §185(a), or the National Labor Relations Act, 29 U.S.C. §§157, 158. Preemption was argued because the whistleblower claims arose out of plaintiffs’ complaints about wage and hour requirements.

It first, unanimously, held there was appellate jurisdiction over the case under the federal Arbitration act. It reviewed several stands of case law to conclude that the Act applies to collective bargaining contracts with arbitration clauses except for those involving transportation workers, that denials of motions for stay can be reviewed under section 9 of the Act when an unmistakable motion for stay and compelling arbitration is filed and the motion is denied and nothing in 29 USC 185 prevents review of those orders as they are procedural in nature. The majority held that the arbitration clause here did not apply to retirees as it uses “wages, hours and employment conditions” which Supreme Court precedent and cannons of construction limit to current employees not retirees.

[author: Michael A. S. Newman] In Sciborski v. Pacific Bell Directory, the California Court of Appeal, Fourth Appellate District,Division One, determined that an employee’s claims for wage deductions under California Labor Code 221 was not preempted by section 301 of the Labor Management Relations Act (29 U.S.C. § 185). Sciborski was a sales representative at Pacific Bell, selling advertising for Pacific Bell’s Yellow pages.