SCHAUMBURG – While huge corporations such as White Castle have been in the news concerning the Biometric Information Privacy Act (BIPA), numerous members of the Technology & Manufacturing Association are in the midst of or have already settled unexpected lawsuits concerning the law set into motion in 2008.
Although BIPA became law 16 years ago, only within the past few years have law firms been pursuing large settlements as a result of what they say have been employee privacy invasions. Nearly 2000 Illinois businesses face steep financial consequences as a result, including TMA member companies.
Small and midsized employers like those in TMA, hoping to add accuracy to payroll distribution, installed biometric systems that included fingerprint and retina scans. Illinois’ BIPA law says that employees must agree to have their biometric information gathered. A key question the state law didn’t make clear was just how often must employees agree?
Confusion resulted, and as in the case of White Castle, the company was determined to have to pay $17 billion in fines for failing to have their employees agree as often as needed – a situation enough to seriously set a company back on its heels.
The White Castle case was appealed to the Illinois Supreme Court, which asked the Illinois General Assembly to clarify how the law was intended to be applied – per person, per event, exactly how? And when would that clarification commence?
Despite the Illinois Supreme Court’s urgent request, the Illinois General Assembly adjourned with no clarification or official response – leaving employers like TMA members in legal confusion.
TMA has been at the forefront urging the Illinois General Assembly to respond to the Illinois Supreme Court and clarify the legislative intent of BIPA.
State Senator Bill Cunningham introduced legislation this spring to address some of the concerns, which TMA applauds.
In response to Senator Cunningham’s attempt to address the BIPA issue, TMA’s State Capitol lobbyist David Curtin offered supportive testimony March 12, 2024, as follows:
Technology and Manufacturing Association
Testimony for Senate Judiciary Committee
BIPA Legislation – SB 2979 (Cunningham)
March 12, 2024 – 2:00 p.m. – 409 Capitol
TMA Lobbyist David Curtin
Thank you for allowing TMA the opportunity to testify about the Biometric Information Privacy Act bill, SB2979, introduced by Senate Leader Cunningham. My name is David Curtin and The Technology and Manufacturing Association I represent has been hearing from our member companies for over a year on the expensive payouts they have been faced with on our current law.
Our member companies are small and mid-sized manufacturers employing (generally) less than 500 workers. They often are 2nd and 3rd generation manufacturers who are like family in their communities because they’ve been around so long and people know them so well. They often are the donors for the school yearbook ads or the school’s sports teams. Moms and dads of these students work at our companies, and many of them have worked at the companies for years because they are good places to work and they’re treated well. They have a lot of stability.
These companies don’t have HR departments or legal departments, although they are good enterprises that are producing needed quality products and employing 75% of Illinoisans in the manufacturing industry. The company owners don’t have a lot of money laying around. But they do have a mission, great work ethic, and produce quality products.
I love walking into our member companies’ buildings. They are clean and well-lit and you could eat off the floor. They are producing high-quality products at certain specifications for larger companies or for NASA or Boeing. They have many employees who, if you asked them at random, have been at the company for 20 years and if you ask why, they say it’s because they’re treated fairly and it’s a nice environment to work in.
But as I said, they don’t have a lot of money laying around.
When they started being sued for BIPA violations, they were of course as surprised as White Castle, a very large company with tons of HR and legal resources. As White Castle didn’t figure this law’s application out beforehand, so it has been for our 200 or 300-employee companies who have been learning like the rest of us.
Since 2008, our companies had never heard from anyone who had been hurt or harmed by the BIPA law. But a year or so ago, our companies started getting approached by lawyers seeking redress for their clients or they would take our companies to court. Our companies usually hire legal counsel, and the legal counsel tells them to just settle. That is because the law is written the way it is and until the state legislature fixes the language, they look at White Castle’s $17 billion judgment and immediately look to some sort of resolution so they can stay in business – for their employees, for their clients, and for their communities.
They pay these large settlements out of their own pockets. Their insurance doesn’t cover it. So it is coming out of their earnings, no matter how good a job they are doing or how well they try to follow rules and regulations. I’m not saying that the law is unfair, but I am saying that they have been operating in good faith all these years and if they knew how this law was going to be applied, they certainly would have done something earlier to make sure they are compliant with the law. Currently, TMA is giving seminars for our members on how to comply with this law.
We are hoping that we can report to our companies that the legislature has fixed this law so that it applies per person, as opposed to per swipe or whatever the biometric measuring method happens to be.
While this is a solid bill and we want to thank Senate Leader Cunningham for his sponsorship, for TMA there is still one critical piece not in the bill: that the legislative fix be retroactive to 2008, when the law began. This is important for our member companies, and we believe in the spirit in which this legislation is intended. To not have the retroactivity piece in some fashion seems to us to defeat the purpose of this noble effort.
Of course, it would be helpful to have language included of last session’s SB3782, a bi-partisan bill that allows for unilateral collection of biometric data for security purposes, such as preventing theft or fraud as well as additional security measures. But the retroactivity piece is critical for us.
Thank you for allowing me to testify on this legislation. There are a lot of company owners who have been going to bed with headaches and certainly losing sleep over this. They want to do their best for their employees, their companies, and their communities.
They have told us over and over that they would like this issue resolved so they can keep their companies going in Illinois. That is the reason I’m here today. Thank you for your time and consideration.
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