Illinois employers will no longer face astronomical damages — into the millions or even hundreds of millions of dollars at issue in recent class action lawsuits — for violations of the Biometric Information Protection Act (BIPA) under reforms signed into law on August 2, 2024. Still, there are significant consequences for even technical violations for BIPA, and employers should review their policies and practices in light of these recent changes.
We have previously discussed how employers in Illinois can ensure compliance with BIPA following court rulings that greatly expanded potential liability under the law. BIPA imposes various requirements, including maintaining a written and publicly available policy and obtaining written consent from individuals, before companies may use finger or hand scans, facial recognition, or other biometric information. Employers have increasingly used finger scans or other biometric information for timekeeping, and those unaware of BIPA’s strict requirements have faced substantial liability for technical violations of the law because plaintiffs do not need to prove actual harm or misuse of their information to recover damages.
In 2023, the Illinois Supreme Court issued rulings that exponentially expanded liability for businesses that use biometric information, including: (1) the statute of limitations for BIPA claims can reach back five years; and (2) a separate violation of BIPA occurs every single time a company collects or uses biometric information without complying with notice and consent requirements. This meant that employers that used finger scans for clocking in and out of work — but did not satisfy BIPA requirements — faced damages of up to thousands of dollars for every single scan, such that total damages in class action cases could total millions or hundreds of millions of dollars.
With the new reforms, damages for BIPA violations are no longer calculated on a “per scan” basis but are instead calculated “per person” so that multiple scans or collections of biometric information for one person allows just one recovery under the law. In addition, the law now clarifies that written consent to collect and use individual’s biometric information can be obtained through an electronic signature.
Employers outside of Illinois should also pay attention. Texas, Washington State, and New York City also have biometric privacy laws, and similar legislation has been introduced in more than a dozen other states in recent years. Businesses that use or may adopt biometric technology for timekeeping or other purposes should review compliance in this area.