Seventh Circuit Tosses BIPA Class Action On Federal Labor Law Preemption Grounds

• Published date: 25 September 2021
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Arbitration & Dispute Resolution, Class Actions, Trials & Appeals & Compensation
• Law Firm: Seyfarth Shaw LLP
• Author: Mr Gerald Maatman Jr., Thomas E. Ahlering, Alex W. Karasik and Sarah K. Bauman

Seyfarth Synopsis: On September 20, 2021, the Seventh Circuit ruled in Fernandez v. Kerry, Inc., No. 21-1067 (7th Cir. Sept. 20, 2021), that a cause of action filed under the Illinois Biometric Information Privacy Act ("BIPA") by employees of Kerry, Inc., was preempted by Section 301 of the Labor Management and Relations Act because the claims were premised on an alleged failure by the employer to obtain consent before requiring their employees to scan their fingerprints, and the issue of consent was covered by a collective bargaining agreement. As a result, the Seventh Circuit held that the class action claims could not be pursued by the employees against Kerry, Inc. in federal court.

The Fernandez ruling exemplifies that certain employee disputes implicating the BIPA will be dismissed if the parties intended such disputes to be resolved by the employer and the employees' collective bargaining representative.

Case Background

Five former employees of Kerry, Inc. ("Plaintiffs") filed a class action under the BIPA, alleging that Kerry, Inc. failed to obtain their consent before requiring Plaintiffs to scan their fingerprints for timekeeping purposes. Id. at 1-2. Defendant moved to dismiss on...