Employer-focused BIPA Complaint Trend Comes for FedEx

FedEx has been hit with a class action lawsuit under Illinois’ Biometric Information Privacy Act, unwittingly illustrating a trend in what some analysts have described as a cottage market.

First enacted in 2008, BIPA regulates the collection, use, and handling of biometric data by private entities in Illinois. Its aim is to protect individuals’ biometric information, such as fingerprints, facial recognition data, and iris scans, by requiring companies to obtain explicit consent before collecting such data. The law also mandates that entities disclose their data retention policies and safeguards for protecting biometric information.

In recent years, lawsuits under BIPA have significantly escalated as the use of biometric technologies across various industries has increased. Many companies have faced litigation for failing to comply with BIPA’s consent and disclosure provisions. High-profile settlements and verdicts have highlighted the financial risks associated with non-compliance, leading to increased awareness and further legal actions.

Like so many other companies, FedEx is facing a complaint stemming from its use of a biometric time and attendance tracking system for employees. While employees were undoubtedly aware that they were scanning their fingerprints when clocking in and out for shifts, the lawsuit contends that FedEx failed to disclose its collection of biometric data and its policies concerning the data.

This is part of a recent trend observed by Bloomberg Law analyst Bridget Roddy, who notes that employment-related BIPA complaints far outpaced those brought by consumers in the second quarter of this year. Consumer-driven complaints had comprised the majority for years, until that trend reversed in the second half of 2023, possibly as a result of a notorious Illinois Supreme Court ruling against White Castle that determined that each scan of an employee’s biometrics counted as a single violation of BIPA (warranting a fee).

A proposed amendment to BIPA, which appears very likely to become law, would clarify that BIPA violations should be counted on a per-person, rather than per-scan, basis.

Meanwhile, Crate & Barrel has just had its own BIPA settlement with a class of employees approved by a judge. The retailer has agreed to pay out $2.4 million.

Sources: Bloomberg Law, Law360

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July 10, 2024 – by Alex Perala