By: Jessica Jackler
On 10/12/22, an Illinois federal jury in Rogers v. BNSF Ry. Co., N.D. Ill., No. 19-cv-03083, awarded $228 million to a class of more than 45,000 truck drivers in the first biometrics privacy class action to go to trial in Illinois. In reaching its verdict, the jury found that BNSF Railway Co. violated the Illinois Biometric Information Privacy Act (“BIPA”) by collecting employee fingerprints without proper consent.
The plaintiff truck drivers alleged that BNSF improperly required drivers entering the company’s facilities to provide their biometric information through a fingerprint scanner without first obtaining informed written consent or providing a written policy that complied with the BIPA. BNSF argued that it hired a third-party vendor to operate its fingerprint scanning technology and therefore could not itself be vicariously liable for the vendor’s actions. This argument was rejected. The court held that the BIPA’s language is broad enough to impose vicarious liability because it provides that “[n]o private entity may collect, capture, purchase, receive through trade, or otherwise obtain” an individual’s biometric data. The court reasoned that the broad phrase “otherwise obtain” meant BNSF need not have actually collected biometric information itself to be held liable under the BIPA.
Practice Pointer:
This case is extremely important for Illinois businesses moving forward. Employers, especially those that utilize third-party vendors for timekeeping or HR-related tasks, must strictly comply with the BIPA requirements including written consent and issuing the required written notices.