August 14, 2019

Seventh Circuit Suggests that Unions Can Negotiate Workers’ Biometric Data Privacy Rights with Employers

Chris Hoffman

Miller v. Southwest Airlines Co., 926 F.3d 898, 900 (7th Cir. 2019) consolidated suits brought against Southwest Airlines and United Airlines by Illinois employees of the two airlines under the state’s Biometric Information Privacy Act (BIPA). At issue was whether employees could seek relief in court for alleged violations of BIPA when the airlines required employees to provide their fingerprints to clock in and out with the airline timekeeping systems. Judge Easterbrook concluded that they could not; instead, the employees must present their claim to an adjustment board under the Railway Labor Act (RLA).

Enacted in 2008 in response to the bankruptcy sale of Pay By Touch, a company that attempted to sell consumers’ fingerprint data that it collected, BIPA was the first of its kind to regulate the use of biometric data and is unique in that it provides a private right of action. BIPA regulates private entities’ use of biometric data in Illinois by a) requiring that companies collecting biometric data develop a written, publicly-available retention policy and guidelines for permanently destroying the data; b) requiring that companies obtain a written release from the data’s subject and inform individuals in writing that their data is being collected; c) prohibiting the sale or lease of biometric information; and d) limiting the transfer of such data. The statute applies to all “biometric identifiers” including retina or iris scans, voiceprints, scans of hand or face geometry, and fingerprints, the subject of litigation in Miller.

In reaching its decision, the court reasoned that unions in the air transportation business are workers’ exclusive bargaining agents under the RLA, which applies to air carriers in addition to railroads. Easterbrook particularly focused on language in BIPA which allows the “legally authorized representative” of the subject whose biometric data is at issue to consent on the individual’s behalf to the collection and transfer of that data. In rejecting the plaintiffs’ contention that unions are not legally authorized representatives for the purpose of employers collecting their workers’ fingerprint data, the court equated biometric information to other subjects implicating workers’ privacy that are frequently covered by collective bargaining agreements, such as drug testing.

Unlike claims such as retaliatory discharge, which arise independent of collective bargaining agreements, the court held that “[i]t is not possible even in principle to litigate a dispute about how an air carrier acquires and uses fingerprint information for its whole workforce without asking whether the union has consented on the employees’ collective behalf.” Where a dispute “necessarily entails the interpretation or administration of a collective bargaining agreement,” individual employees are barred from suing air carriers under state law. However, the court left open the possibility that employees could seek relief in court against their unions if the unions violated their duty of fair representation in negotiating the collection of biometric data with employers.

The effects of the Seventh Circuit’s decision in Miller have the potential to be far-reaching. A flood of new class action lawsuits have been filed since the Illinois Supreme Court ruled earlier this year in Rosenbach v. Six Flags Entm't Corp. that a plaintiff need only demonstrate a violation of his or her rights under the Act, and not an additional specific harm such as the data being misused or stolen, in order to qualify as an “aggrieved person” under BIPA. Like Miller, many of these lawsuits are rooted in the wage and hour context where companies frequently require employees to clock in and out of work using scans of their fingerprints or hand geometry.
While the Illinois Supreme Court emphasized the importance of individuals’ biometric privacy rights in Rosenbach, it remains to be seen how the Seventh Circuit’s ruling will impact the multitude of workers whose employment is governed by collective bargaining agreements. The court’s decision in Miller paves the way to deny thousands of workers their day in court and, instead, force them to pursue their claims in arbitration or administrative forums, because state law claims requiring the interpretation of collective bargaining agreements are preempted by federal law under statutes such as the RLA and National Labor Relations Act.