Mary Smigielski Comments on Recent Illinois Ruling Regarding BIPA and Workers’ Comp for Law360 Article

Chicago, Ill. (September 24, 2020) – Chicago Partner Mary A. Smigielski provided her analysis of a recent Illinois decision to Law360 for an article titled “3 Takeaways From Ill. Ruling on BIPA And Workers’ Comp.” The article discusses the implications of the Illinois appellate court decision in McDonald v. Symphony Bronzeville Park LLC, which held that the Illinois’ workers’ compensation law did not preempt claims for statutory damages under the Illinois Biometric Information Privacy Act (BIPA).

As the article describes, although this ruling did not surprise Illinois attorneys who regularly handle BIPA matters, it provided some certainty for employers who have attempted to argue that the exclusivity provisions in the state Workers’ Compensation Act (WCA) preempt BIPA violation claims. Nevertheless, as Ms. Smigielski pointed out, the decision left open certain related issues that courts will need to address in future cases.

Ms. Smigielski told Law360 that although she believes Illinois’ highest court will ultimately take up the McDonald case, it is unclear how state courts will rule on motions to dismiss BIPA claims in the meantime. She explained that some lower courts have stayed cases while awaiting the appellate court’s ruling, while other courts denied requests to pause their cases on the BIPA/WCA issue.

In addition, Ms. Smigielski explained that the appellate court’s reference to the Illinois Supreme Court decision in Folta v. Ferro Engineering gives courts room to determine whether injuries under BIPA could be compensable under the WCA. Specifically, Ms. Smigielski described that the ruling in Folta provided only “broad parameters” concerning what is compensable under the WCA. Thus, courts may still have leeway to decide that an injury under BIPA “is not a traditional injury, but still an injury of a sort that occurs in the context of employment.”

Ms. Smigielski also pointed out the distinction that the Illinois appellate court drew concerning the WCA’s applicability to claims for liquidated damages versus actual damages, explaining that the court’s consideration related only to statutory damages under BIPA, not actual damages. “They were very careful to say they were not making any decisions on that,” she said.

Finally, the article noted that not all organizations have the necessary resources to defend against alleged BIPA violations. On this point, Ms. Smigielski was recently quoted by local affiliate NBC 5 Chicago in an article titled “Illinois Facebook Users Can Now File Claims for Payouts in $650 Million Lawsuit Settlement.” In commenting on smaller companies’ arguments that BIPA should be narrowed to permit the use of fingerprint scanners to track employees’ hours, she explained, “Small and medium-size businesses really do not have the resources to defend these cases or pay some big settlement.”

Ms. Smigielski co-founded and serves as the co-chair of Lewis Brisbois’ Illinois BIPA Practice, the first in the nation. She has been on the cutting edge of BIPA litigation, providing commentary to a number of outlets on the topic, and recently co-authoring an Insight article for Bloomberg Law on the potential nationwide implications of BIPA during the COVID-19 pandemic. Ms. Smigielski is also a member of the firm’s Labor & Employment Practice.

You can read the full Law360 article here (subscription required). You can learn more about the McDonald case in our recent alert, "BIPA Continues Its Devastating Impact on Illinois Businesses."