Court Tosses Airline Employees Challenge on Fingerprints Under Biometrics Law

(June 20, 2019) A challenge by Southwest and United employees, under the Illinois Biometric Information Privacy Act (“BIPA”), to the requirement that they sign in using their fingerprints must be heard by an administrative agency, not the courts, the Seventh Circuit declared.

The appellate court said it was up to the National Railway Adjustment Board to determine if the airline employees’ union consented on behalf of the employees to fingerprinting to clock in and out.

The BIPA includes fingerprints under the definition of biometric information. Before obtaining biometric information, a private entity must inform the person in writing as to the purpose of collecting the data and how long it will be kept, and it must obtain the person’s written consent.

Both Southwest and United require workers to clock in and out with their fingerprints. The employees argued that the fingerprint system was implemented without their consent, the airlines failed to publish protocols, and used third-party vendors to implement the system. The airlines argued that the employees consented through the collective bargaining agreements and that Illinois’s BIPA is preempted by the Railway Labor Act.

The appellate court found that interpreting a collective bargaining agreement must be resolved by an adjustment board under the Railway Labor Act. Whether the employees’ unions consented to the collection and use of biometric data “is a question for an adjustment board.”

“That biometric information concerns workers’ privacy does not distinguish it from many other subjects, such as drug testing, that are routinely covered by collective bargaining and on which unions give consent on behalf of the whole bargaining unit,” the opinion states.

The appellate court did not entirely rule out future court action. “Perhaps a board will conclude that the union did not consent or did not receive essential information before consenting, just as plaintiffs asset. But the board must make that decision and supply any appropriate remedy.”

Illinois was the first and is one of a handful of states with a biometrics protection act that limits how biometric data is collected and used.

Jennifer Miller et al v Southwest Airlines Co. and David Johnson v United Continental Holdings, Inc., Seventh Cr. Nos 18-3476 and 19-1785, issued June 13, 2019.