Merchants in Illinois are facing a problem 15 years in the making. In 2008, the Illinois legislature unanimously passed the Biometric Information Privacy Act, which ensures that private companies are prohibited from collecting biometric data unless given express permission, according to Rob Karr, president and CEO of the Illinois Retail Merchants Association.
The law requires Illinois businesses to inform consumers in writing what data is being collected or stored and the specific purpose and length of time for which it will be collected, stored and used. Customers must also provide their written consent.
The biometric information includes retina or iris scans, fingerprints, voiceprints, hand scans, facial geometry, DNA and other unique biological information, according to the state legislature’s website.
BIPA also prohibits businesses from selling that information. Since its inception, BIPA has been the most protective biometric privacy law in the country, according to Karr. It is unique by offering consumers the possibility of civil litigation for violators.
Recently, questions around the law have led to an influx of civil cases.
“The problem is, it’s arguable whether you have to get the consent every time or one time,” Karr said. “And we’ve had people who have given consent lie and say they did not give consent, and we’re seeing class-action lawsuits about it … it’s very short-sighted and unmanageable.”
Karr said the IRMA is completely in favor of the law itself, adding it’s “something we certainly need, especially in this day and age.” But the organization would like to see regulations more clearly outlined. “We would like to allow [biometric information gathering] in certain situations.”
Without naming the business, Karr gave an example of an active lawsuit regarding an employee who is suing over the use of a biometric clock to clock in and out.
“Let’s say I had a system, got your consent, then changed the system, and I didn’t get your consent again. They’re suing under that,” he explained. “And they’re basing it on every time it was swiped.”
Karr also mentioned a May decision in a similar case before the Illinois Supreme Court. It ruled 4-3 to award the plaintiff, on behalf of 9,500 current and former employees of the fast-food chain White Castle, reparations that may exceed $17 billion, according to the American Bar Association.
In the case, the plaintiff, a former White Castle employee, stated the company violated BIPA through its use of a fingerprint scanner and transmitting the scan to a third party for authentication each time. The company received initial consent during the hiring process, the ABA’s website reads.
Karr said this and other ongoing litigation has made updating BIPA “so important.”
“The electorate is very sensitive to their private data,” he said. “They don’t want their data being given out. It’s just easily abused by those who would like to engage in fear tactics … It’s so important for retailers in every industry in the state to avoid this.”
Illinois retailers in Chicago could see their already diminished workforce get smaller. The IRMA got a victory last spring when it was able to secure a uniform five days of paid leave statewide. It was a success, as the days couldn’t be rolled over and they couldn’t be paid out, according to Karr.
“The city – through the Chicago Federation of Labor – wanted to do 15 [days] divided between sick days and paid time off, and they want to carry a bunch of days, and they want payout,” Karr explained.
This would continue to crunch businesses in the city that are undergoing a minimum wage increase – capping at $15 in 2025 – and continuing to navigate the 2020 Predictive Scheduling Law. The ordinance requires employers to provide advance notice of work schedules to covered employees and to pay additional wages if what is posted changes within a certain period, according to the city’s website.
“If you were to work for me and you were to request off, not only am I paying you, I’m going to have to pay whomever I’m calling in to fill your spot time and a half,” Karr said. “It really hits the business owner – in this case, grocers – coming and going.”
Greater Chicago area and Cook County businesses also are dealing with the increased burden of property taxes. As Karr, explained the county assessor’s office has been focusing on reducing the tax burden of residents by raising taxes on commercial/industrial properties.
Read more association news from The Shelby Report.