Lawyer Monthly Magazine - August 2019 Edition

An Interview with Storrs Downey: Addressing the Ever-Expanding Issue of Biometrics and Privacy in the Workplace to clocking in and out, have replaced traditional systems with fingerprint scans. WHAT IS THE CURRENT LAW ON BIOMETRICS IN ILLINOIS? In 2008, Illinois enacted the Illinois Biometric Information Privacy Act (BIPA), a privacy law which—amongst other things—requires written notice and consent before the use and storage of unique identifiers, such as fingerprints and retina scans. BIPA applies to all private entities (inclusive of individuals) in Illinois, but because the focus of our practice is employment- related claims, I will narrow the scope of my response to discuss the impact of BIPA on private employers. BIPA provides a private right of action that permits prevailing parties to recover damages of $1000 (or actual damages if greater) for negligent violation(s) and $5000 (or actual damages if greater) for intentional or reckless violations, as well as attorney fees, costs and expenses. HAS THERE BEEN ANY SIGNIFICANT CASE LAW DEVELOPMENT IN THIS AREA? In January 2019, the Illinois Supreme Court unanimously ruled that plaintiffs do not need to show actual harm to have standing as an “aggrieved person” under BIPA in Rosenbach v. Six Flags Entertainment Corp. This ruling has certainly led to an increase in BIPA lawsuits, especially class actions. WHAT ARE SOME OF THE NEWER CHALLENGING AREAS YOU FACE IN CONSULTING, ADVISING AND DEFENDING CLIENTS ON EMPLOYMENT RELATED ISSUES? Of course, there has been a substantial uptick in sexual harassment claims fueled by the #MeToo Movement. With the current POTUS administration, we are also seeing a pullback on many wage and employment-related regulations and provisions previously issued by the DOL and NLRB. However, the EEOC remains as aggressive as ever with investigations and prosecutions of Title VII claims, as are many state courts and legislative bodies. Expanding state legalization of marijuana for medicinal, or even recreational purposes, is also an increasingly difficult area for employers. One of the most intriguing and newest challenges for employers concerns privacy laws— specifically, legislation-related biometrics in the workplace. WHAT ARE BIOMETRICS AND HOW ARE THEY USED IN THE WORKPLACE? Biometrics are unique physical characteristics such as fingerprints, DNA, voiceprints, face or retina features that can be used for automated recognition. The use of biometrics in the workplace has greatly expanded in recent years, especially in security and timekeeping areas. As an example, many employers looking to eliminate errors and other tampering related Storrs W. Downey Bryce Downey & Lenkov LLC Dir: 312-327-0007 | Tel: 312-377-1501 | Special Feature By Storrs W. Downey, Bryce Downey & Lenkov LLC 64 WWW.LAWYER-MONTHLY.COM | AUG 2019

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