- Email: Mary.Smigielski@lewisbrisbois.com
- Phone: 312.463.3377
- Fax: 312.345.1778
Mary A. Smigielski is a partner in the Chicago office of Lewis Brisbois, Midwest Regional Vice Chair of the Labor & Employment Practice, and co-chair of the firm’s Illinois Biometric Information Privacy Act (BIPA) Practice. Ms. Smigielski handles class/collective actions and single-plaintiff employment litigation, administrative charges, nationwide counseling, training, and sensitive workplace investigations, including at the C-Suite level. Having spent nearly a decade as in-house employment and business counsel for a multi-national, Fortune 50 company with responsibility for over 100,000 employees, Ms. Smigielski is in a unique position to recognize the challenges faced by our clients and is committed to achieving creative and cost-effective solutions.
Ms. Smigielski partners with all levels of leadership to achieve complex business objectives, define, assess and control legal risk, and implement workplace policies and best practices. She routinely represents employers in State and Federal Courts, and she has appeared in courts across the United States in individual, class, collective and multi-district litigation as well as mediations and arbitrations. She has extensive experience with administrative agencies, including the U.S. Equal Employment Opportunity Commission, U.S. Department of Labor, Illinois Department of Human Rights, Chicago Commission on Human Relations and various other agencies nationwide.
Ms. Smigielski has been on the cutting-edge of the defense of class action litigation brought against employers and others under the Illinois Biometric Information Protection Act (BIPA). She works closely with national insurance carriers and private clients for defense, compliance and mitigation of risk related to BIPA.
Ms. Smigielski’s counseling practice involves partnering with clients on all aspects of the employee life cycle, including pre-employment screening, the application process, restrictive covenants, orientation, handbooks, policies, compensation programs, exemption analysis, leaves of absence, accommodations, crisis response/threat management, training, wage/hour audits, reductions-in-force, facility closures, termination counseling, separation agreements and responding to inquires from the media and regulatory officials.
Her practice also involves unfair competition law, business-to-business disputes, gig-economy initiatives, executive agreements, non-disclosure agreements, non-competition agreements, non-solicitation agreements, professional services and independent contractor arrangements, mergers and acquisitions, asset purchase/sale agreements, and intellectual property matters such as the defense of trademarks. She also has litigated a wide variety of other matters including personal injury, products liability and securities fraud.
Recently, Ms. Smigielski chaired a bench trial and successfully defended her client for a complete defense verdict against claims of age discrimination, breach of contract and violation of the Illinois Wage Payment and Collection Act valued in excess of $1.5M.
- Nearly a decade in-house at an international Fortune 50 retail company after 14 years of private practice. Counseling and litigation supervision for approximately 100,000 retail and pharmacy employees nationally and off-shore, as well as Supply Chain/Distribution, Real Estate, Loss Prevention, Consumer Electronics, Procurement, Apparel, Grocery/Drug, Inventory Management, Facilities, Finance and other business units.
- Cost sensitive litigation management of heavy class/collective action/PAGA and single-plaintiff docket nationally and in Puerto Rico and the U.S. Virgin Islands. Developed strategy with outside counsel, managed outside counsel/budgets and attended significant depositions, hearings, mediations, arbitrations, trials. Evaluated risks, set reserves and litigation budgets and counseled management on litigation process/avoidance. Resolved $26M individual plaintiff employment verdict and related cases for $1.9M in California.
- Directed litigation and negotiated highly favorable class/collective settlements including alleged failure to pay vacation/personal days to approximately 100,000 employees in Illinois; national violations of the Fair Credit Reporting Act (FCRA) during hiring; nationwide misclassification of various managers; improper wage statements in California.
- Successfully defended Employment Arbitration Agreement from claims of unconscionability and compelled putative class actions to arbitration in state and federal court.
- Employment law due diligence for M&A deals, including $2.3B spin-off with 6,000 employees and a $2B REIT transaction.
- Counseled HR/management through all aspects of WARN, OWBPA and EEO adverse impact analysis of staff reductions and facility closures, including negotiating and preparing exit agreements and restructuring for optimal efficiency and avoidance of litigation.
- Developed and revised employment policies, executive/employment agreements, third party contracts, organizational and compensation structures, diversity initiatives, marketing materials and press responses.
- Continually revamped payroll practices to ensure compliance, evaluated risk and revised independent contractor selection process, and advised on e-commerce/gig-economy initiatives and new policies such as a non-accrual vacation policy, BYOD, social media and elimination of performance reviews.
- Led significant workplace/ethics investigations and immediately responded to workplace violence or other situations requiring crisis management. Responded to DOL/state audits and partnered with law enforcement agencies such as the FBI, DOJ, and Homeland Security.
- Proactively advised on new laws and regulations.
- Developed training and trained all levels of employees on employment law issues.
- Various Law Department responsibilities while in-house included RFP process, planning CLE, revamping processes for legal compliance, paralegal performance analysis, member of Pulse Committee and co-chair of social planning subcommittee.
- Led corporate raiding/restrictive covenant litigation at direction of the Chairman of the Board of a national healthcare provider.
- Achieved favorable consent decree in multi-year ADA litigation with the EEOC for a retail client.
- Multiple favorable summary judgment decisions, including in favor of a mortgage company on a claim of retaliation when plaintiff was terminated five days after her sexual harassment deposition.
- Member of firm management committee at a prior firm.
- Quoted, "Illinois Biometric Privacy Cases Jump 65% After Seminal Ruling," Bloomberg Law, May 2, 2023
- Quoted, "Old Dominion’s Biometric Waiver Offers Creative Legal Tactic," Bloomberg Law, April 20, 2023
- Quoted, "The Rise of US State-Level BIPA: Illinois Leads, Others Catching Up," IAPP, March 28, 2023
- Quoted, "BNSF's 228 Million BIPA Judgment in Play After 'White Castle'", Bloomberg Law, March 10, 2023
- Quoted, "Illinois Supreme Court Allows Privacy Fines," Bloomberg Law, February 23, 2023
- Quoted, "Illinois Supreme Court: BIPA Claims Accrue With Each Scan," Insurance Journal, February 22, 2023
- Quoted, "Ill. Justices' Focus On Legislators' Intent Divides BIPA Bar," Law360, February 3, 2023
- Quoted, "1st BIPA Jury Trial May Raise Coverage Headaches," Law360, October 6, 2022
- Quoted, "Landmark Ill. Privacy Law Faces First Jury Test," Law360, October 3, 2022
- Quoted, “Shaping the BIPA Landscape: Avoiding Liability,” Cybersecurity Law Report, September 14, 2022
- Quoted, “Shaping the BIPA Landscape: Notable Trends and Developments,” Cybersecurity Law Report, September 7, 2022
- Quoted, “Illinois Cases To Watch In 2nd Half Of 2022,” Law360, July 14, 2022
- Quoted, “White Castle Aims To Whittle Down BIPA's Scope,” Law360, May 16, 2022
- Quoted, “Ill. High Court BIPA Ruling: Next, How Big Can Damages Get?,” Law360, February 4, 2022
- Quoted, “BIPA Timing Decision Underscores Debate Over Claim Accrual,” Law360, September 21, 2021
- Quoted, “3 Major Biometric Privacy Arguments To Watch This Month,” Law360, September 10, 2021
- Quoted, “Will Voice Recognition Tech Be the Target of a New Wave of BIPA Complaints?,” The Recorder, June 3, 2021
- Quoted, “Would You Like Fries With That BIPA Complaint?,” Law.com, June 2, 2021
- Quoted, “Big Questions for BIPA Case Law in 2021,” Cybersecurity Law Report, February 17, 2021
- Author, "Respect and Communication: Pathways to Productive and Satisfied Employee," The Grindstone Blog, December 4, 2020
- Co-author, “United States: Coronavirus – Employers, Be Smart! Be Prepared!,” The Grindstone Blog, February 13, 2020
- Quoted, “Illinois Facebook Users Can Now File Claims for Payouts in $650 Million Lawsuit Settlement,” NBC Chicago, September 22, 2020
- Co-author, “Illinois Biometric Privacy Law Has Nationwide Potential in Pandemic,” Bloomberg Law, April 24, 2020
- Quoted, “Unique Illinois privacy law leads to $550M Facebook deal,” AP News, February 9, 2020
- Quoted, “Firm courts new biometric clients with BIPA practice,” Chicago Daily Law Bulletin, February 21, 2019
- The BIPA Radar Episode 1: The Origins of the Illinois Biometric Information Privacy Act
- The BIPA Radar Episode 2: The Illinois Supreme Court’s Response to BIPA
- "Which Employment Law is Worse? Is There Still Hope?," Presentations to national insurance carriers in Connecticut, New York, and national webinar.
- 'Three Turning Points in Handling Employment Claims at the Claims Letter, Administrative Charge and Litigation Stages." Presentation to national insurance carrier in Connecticut.
- Law Firm Representative, Mansfield Client Forum hosted by Paramount Global, May 2023
- Presenter, "Employment Law 101: Navigating the Workplace," for a large Chicagoland Financial Advisory Business, May 2023
- 2023 National Labor & Employment Law Symposium, Latest on ESI Planning and Related Strategies, February, 2023
- Presenter, "The Year in Cybersecurity & Predictions for 2023," a Lewis Brisbois Webinar, December 2022
- Presenter, Chicago Bar Association, Cyber Law and Data Privacy Comittee, "BIPA: The Statute that Keeps on Giving," September 2022
- Fall 2022 Update – Illinois Biometric Information Privacy Act, DuPage County Bar Association, September 7, 2022
- An Update on Notable Employment Caselaw and Its Impact on the Retail, Restaurant & Hospitality Industries, CLM Workers Compensation and Retail, Restaurant and Hospitality Conference, May 2022
- 2022 Update – Illinois Biometric Information Privacy Act, DuPage County Bar Association, May 2022
- 2022 Updates in Labor & Employment Law presentation to international pharmaceutical company, April 2022
- "Fall 2021 BIPA Update," a Lewis Brisbois Webinar, presented with Josh Kantrow, September 23, 2021
- Presenter, Return to Work and COVID-19 Testing Plans, for a national laboratory company, July 22, 2021
- Presenter, Professional Liability Underwriting Society (PLUS) Webinar, 2021 Update: Biometric Information Privacy Act, February 10, 2021
- Lawline Webinar, "2021 Labor and Employment Law Update," February 4, 2021
- McGriff Insurance Services, Inc. Podcast, "Decoding Cyber Risks" two-part series, January, 2021
- Lewis Brisbois Webinar, Employment Law – 2020 Recent Developments, April, 2020
- Lewis Brisbois Webinar, BIPA, The CCPA & Data Breaches, January, 2020
- 2020 National Labor & Employment Law Symposium, U.S. Soccer & Equal Pay: Lessons to be Learned in the Workplace on Pay Equity, January, 2020
- Chicago Bar Association, Overview of BIPA, the Illinois Biometric Information Privacy Act, November, 2019
- First Chair Equal Pay Summit, An Analysis of Pay Equity Laws and Legislation in the United States, 2019
- National Insurance Carrier Presentation, The Sweet Spot to Resolution: Difficult Cases, Cantankerous Counsel, but Ideal Outcomes, June 2019
- Lawline National Webinar, Defense and Coverage Issues Under the Illinois Biometric Information Privacy Act, May 2019
- Overview of the Illinois Biometric Information Privacy Act, Defense & Coverage Issues –various clients and national insurance carriers throughout 2019
- Brokers Risk/The Sandner Group, Sexual Harassment Prevention Training, 2019
- 36th Annual National CLE Conference: Labor & Employment, The Latest on Issues Dealing with Equal Pay in the Workplace, 2019
- Habitat for Humanity Illinois Annual Conference: Employment Law 101, Navigating the Workplace when Hostility Happens, 2018
- National Client Training: Sexual Harassment Prevention Training, 2018
- North Shore Labor Counsel: The Equal Pay Landscape of 2018
- National Client Training: Know the Americans With Disabilities Act, 2018
- Lewis Brisbois Management Academy: Employment Documentation: Who, What Where, When and Why – What to Include and What to Leave Out, 2018
- DRI National Webcast: The Millennial Effect: How Millennials are Impacting the Workforce and Employment Claims, 2018
- 35th Annual National CLE Conference: Labor & Employment, Telecommuting as a Reasonable Accommodation, 2018
- First Chair, Annual CLE Seminar – Hot Topics in Employment Law, 2016
- North Shore Labor & Employment Counsel (NSLC) and Baker McKenzie – Employment ADR 2.0: How to Build an Effective & Efficient ADR Program, 2015
- Association of Corporate Counsel (ACC) Wisconsin Chapter and Littler Mendelson – The Great Arbitration Debate, 2014
- Ogletree Deakins, Workplace Strategies – State Law Considerations for HR Professionals, 2012
- Littler Mendelson, Executive Employer Conference – Retail Roundtable, 2010
- Kmart Corporation, National Store Managers Academy, Employment Law 101
- Practicing Law Institute 27th, 28th, and 29th Annual Institutes on Employment Law (Title VII and Section 1981)
- Morgan Lewis, Retail Roundtable – Hiring Employees Who Are Subject to Non-Competes, Non-Solicitation and Confidentiality Agreements, 2006
- Fellow, Morgan Lewis Trial Academy, 2006
State Bar Admissions
United States District Courts
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- Member, Claims and Litigation Management Alliance
- Association of Corporate Counsel (ACC)
- American Bar Association (ABA)
- First Chair, Top Employment Counsel 2012, 2016
- Top Assistant General Counsel 2014, 2015
- Chicago Bar Association
- Member, Illinois Women Conquer ALZ
University of San Diego School of Law
Juris Doctor, 1993
- Deans Distinguished Service Award
- Editor-in-Chief, Motions, School of Law newspaper
- Diploma, Institute for International and Comparative Law, Paris 1991
- Intern, Center for Public Interest law
University of San Diego
Bachelor of Arts, Political Science, 1990