Quick Take on Illinois Supreme Court Opinion Issued Thursday, February 3, 2022

The Illinois Supreme Court issued one opinion on Thursday, February 3. 

McDonald v. Symphony Bronzeville Park, LLC , 2022 IL 126511

By Michael T. Reagan, Law Offices of Michael T. Reagan

“Do the exclusivity provisions of the Workers’ Compensation Act (Compensation Act) bar a claim for statutory damages under the Biometric Information Privacy Act (Privacy Act)?” In this Rule 308 appeal, the circuit court of Cook County, the First District, and now the Illinois Supreme Court all answered that certified question in the negative. Ms. McDonald sued her employer Symphony Bronzeville Park, LLC, in this putative class action, alleging that her fingerprints were scanned by the employer as a means of authenticating employees and tracking their time. She alleges that with respect to her and the other members of the intended class that defendants, in violation of the Privacy Act,  negligently failed to obtain written releases before collecting, using and storing their biometric identifiers and information; failed to inform them in writing  that their biometric identifiers and information were being collected and stored; failed to inform them in writing of the specific purpose and time for which those items were being collected, stored and used; and failed to publicly provide a retention schedule or guideline for permanently destroying the identifiers and information. They alleged that their rights to privacy as set forth in the Privacy Act were thus violated. In an amended complaint, McDonald removed allegations that she suffered mental anguish as a result of those alleged violations.

Motions to dismiss based upon Sections 5(a) and 11 of the Compensation Act were denied, but the circuit court granted defendants’ request for certification of the Rule 308 question above. The First District accepted the request for leave to appeal. With Justice Rochford writing for the court, the First District noted the dearth of caselaw applying a compensability standard to this question, but recognized that the question of compensability is broader than just whether the injury arises out of and in the course of employment, but also must consider, to some extent, the character of the injury. That court held that the claims were not barred because they were not compensable under the Compensation Act. 

The Illinois Supreme Court agreed. Justice Overstreet wrote for the Court, with Justice Michael J. Burke filing a concurrence. 19 parties were granted leave to file as amici, with a number of those parties joining in consolidated briefs. The Court undertook to construe both acts. While the Compensation Act generally provides the exclusive means by which an employee can recover against an employer for a work-related injury, Folta v. Ferro Engineering, 2015 IL 118070, offers a catalog of four means by which an employee can avoid the bar of exclusivity, the last of which is a showing that the injury “was not compensable under the Act.” That exception formed the centerpiece of the Court’s analysis. The Court stated that the answer “depends upon the nature of the injury because the exclusivity provisions… only apply if the injury is one that is covered by the Compensation Act.” “The Compensation Act’s main purpose is to provide financial protection for injured workers until they can return to the workforce…. [T]he test  for whether an employee suffers a compensable injury …is ‘whether there was a harmful change in the human organism…’”

In contrast, “The personal and societal injuries caused by violating the Privacy Act’s prophylactic requirements are different in nature and scope from the physical and psychological work injuries that are compensable under the Compensation Act.” Accordingly, because the injury alleged is not the type of injury compensable in a workers’ compensation proceeding, preemption does not apply.

The Court sounded the broad note that it was cognizant of the substantial consequences the legislature intended, and that the General Assembly “has adopted a strategy to limit the risks posed by the growing use of biometrics…and the difficulty in providing meaningful recourse once a person’s biometric identifiers or biometric information has been compromised.” 

Justice Burke concurred in the conclusion that the injury is not compensable under the Compensation Act “because, quite simply, there is no injury.” “Had McDonald persisted in her allegation of mental anguish, the exclusivity provisions…would have barred her claim…. This opportunity for gamesmanship in pleading highlights the incongruity of applying the Compensation Act’s exclusivity provisions to Privacy Act claims that allege actual injuries but not to those that allege technical violations.”