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 the grounds that the suit was preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. '185 ("LMRA"), because the resolution of the claims depended on interpretation of collective bargaining agreements between Defendant and the union that represented Plaintiffs while employed with Kerry. Id. at 2. Pursuant to preemption principles, federal law prevents states from interfering in relations between private employers and unions. Id. The district court agreed with Defendant and dismissed the lawsuit. Plaintiffs thereafter filed an appeal with the Seventh Circuit.

The Seventh Circuit's Decision

In reviewing the district court's ruling, the Seventh Circuit relied primarily on its decision in Miller v. Southwest Airlines Co., 926 F.3d 898, 903-05 (7th Cir. 2019). There, it held that provisions in the Railway Labor Act that parallel Section 301 prohibit employees from "bypassing their employers about how to clock in and out." Id. at 2. The Miller decision further "doubted that Illinois has attempted to give unionized workers a privilege to bargain directly with employers - after all, the [BIPA] permits an employee's 'legally authorized representative' to consent to the collection and use of biometric information." Id. (citing 740 ILCS 14/15(b)). Relying on Mill...