Under BIPA, companies’ use of HR technology such as temperature scanners, biometric timekeeping systems, and access controls has come under scrutiny.
In 2019, the Illinois Supreme Court ruled that an individual may seek liquidated damages and injunctive relief based on violations of BIPA—even if no actual injury or adverse effect beyond violation of his or her rights under the statute was claimed. More than 800 class actions have been filed against Illinois employers in the two years since. According to Littler Mendelson, employers have almost universally settled these suits.
The bill (HB 559) would make key changes to BIPA, including:
- In event of an alleged violation, employers must be notified and given 30 days to cure the issue before a lawsuit could be filed.
- Removal of BIPA’s provisions providing $1,000 liquidated damages for each “negligent violation” and $5,000 liquidated damages for each “intentional or reckless violation” of the Act. Plaintiffs would instead be able to recover “actual damages” and attorney’s fees.
- A one-year statute of limitations would be established. Courts have thus far applied a 5-year period.
Outlook: BIPA casts a long shadow over both current employer practices and potential future lawmaking at the state and federal levels. The Illinois bill is far from the first proposed to adjust BIPA’s stringent enforcement mechanisms, but it is the first to receive traction. Especially notable is the support of four out of ten Democrats, with one abstention. It remains to be seen whether the bill will succeed on the General Assembly floor, but the deliberations are providing a compelling test case for legislative efforts elsewhere.
