McDonald v Symphony Bronzeville Park


Mcdonald vs Symphony Bronzeville Park

The plaintiff, McDonald, filed a class action suit against Symphony Bronzeville Park (Symphony) and its parent company. The plaintiff was an employee of Symphony from December 2016 to February 2017. She alleged that she was required to scan her fingerprint on an employer-provided time clock system. She further alleged defendants violated various statutory requirements of the Biometric Information Privacy Act (BIPA) by negligently collecting biometric information from employees.  The first count of the complaint sought liquidated, statutory damages of $1,000 for each negligent violation, and attorney fees and costs. The second count of the complaint set forth a common law claim of negligence against the defendants, alleging the violation caused her mental anguish.  The plaintiff alleged the defendants violated a duty of reasonable care to comply with the requirements of BIPA. The defendants filed a motion to dismiss, arguing any claims were barred by the exclusivity provisions of the Illinois Workers’ Compensation Act (IWCA).  The plaintiff amended the complaint removing her employer, adding two related entities as defendants, withdrawing her common law negligence claim, and removing allegations related to mental anguish.  The circuit court denied the motion to dismiss, finding the exclusivity provisions of the IWCA did not bar the claims alleging a violation of BIPA. The defendants filed an interlocutory appeal at the Illinois Appellate Court.

The certified question before the Appellate Court was whether the exclusivity provisions of the IWCA bar statutory damages where an employer violates an employee’s statutory privacy rights.  The Court held the exclusivity provision did not bar a claim for statutory, liquidated damages under BIPA. The Court first reviewed the text of BIPA. The Court found BIPA provides that any person aggrieved by a violation of the BIPA has a right of private action in a State circuit court or supplemental claim in federal district court. The Court clarified that the question it was considering related to statutory damages, not actual damages. The Court then discussed the language found in the IWCA.  The Court found an employee can escape the exclusivity provision of IWCA if he establishes, among other factors, that the injury “(1) was not accidental . . .  or (4) was not compensable under the [IWCA]”. The Court reasoned that a violation of BIPA would fall under the first factor, as it involved an intentional violation. 

For purposes of the certified question, the appellate court resolved the issue before it by considering the fourth factor. The Court reasoned that the inquiry to determine compensability under the IWCA related to “whether the type of injury categorically fits within the purview” of the IWCA.  The Court found that they must also consider the character of the injury. The Court found that a claim for liquidated damages under BIPA does not fit within the purview of the IWCA.  Next, the Court considered legislative intent. They found the legislature enacted BIPA to protect an individual’s biometric data before they the data is compromised, and to subject private entities to “substantial potential liability.” By allowing for statutory damages, the legislature intended for the private entities to have the “strongest possible incentive to conform to the law.” The Court concluded that the exclusivity provisions of the IWCA did not bar a claim under BIPA and remanded to the circuit court.  The Illinois Supreme Court has considered to hear the case.  We will continue to follow this case and provide updated information as it becomes available.

Padraig McCoid (bio)


Nyhan.Bambrick.Kinzie & Lowry p.c - Attorney/Associate


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