Union employees’ challenge to employer use of fingerprints to clock in and out fails

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http://www.employmentlawdaily.com/index.php/news/union-employees-challenge-to-employer-use-of-fingerprints-to-clock-in-and-out-fails/

By Ronald Miller, J.D. — A class action lawsuit filed by five employees under the Illinois Biometric Information Privacy Act challenging an employer’s requirement that they use fingerprints to clock in and out was not revived on appeal. Because the employees were represented by a union for purposes of collective bargaining, the Seventh Circuit determined that it was for an arbitrator to decide whether the employer properly obtained the union’s consent before requiring employees to use fingerprints to clock in and out. Accordingly, the district court’s ruling that the suit was preempted by Section 301 of the LMRA was affirmed (Fernandez v. Kerry, Inc., September 21, 2021, Easterbrook, F.).

Biometric information. Five employees filed a class action lawsuit in state court against their employer alleging that it violated the Illinois Biometric Information Privacy Act (BIPA) by requiring employees to use fingerprints to clock in and out. According to the employees, the employer did not obtain their consent before doing so.

The BIPA requires private entities to obtain consent before collecting or using biometric information, including fingerprints. The employer removed the action to federal court, and then asked the district court to dismiss the suit as preempted by Section 301 of the LMRA, because resolution of the dispute depended on interpretation of collective-bargaining agreements between the employer and the union that represented employees.

In Miller v. Southwest Airlines Co., the Seventh Circuit held that provisions in the Railway Labor Act parallel to Section 301 prohibit workers from bypassing their unions and engaging in direct bargaining with their employers about how to clock in and out. The BIPA permits an employee’s “legally authorized representative” to consent to the collection and use of biometric information. If an employer asserts that a union has consented, then any dispute about the accuracy of that contention is one about the meaning of a collective-bargaining agreement and must be resolved between the union and the employer. Under the LMRA it usually means arbitration.

Union consent. Regardless of whether a topic of bargaining is mandatory or permissive, the union is the workers’ agent. If labor and management want to bargain collectively about particular working conditions, they are free to do so. However, workers cannot insist that management bypass the union and deal with them directly about these subjects.

Here, as in Miller, the employer invoked a management rights clause. The Seventh Circuit held in Miller that it was for an adjustment board—as here it is for an arbitrator—to decide whether the employer properly obtained the union’s consent. Whether the union consented to the collection and use of biometric data was a question for decision under the CBA. Similarly, the retention and destruction schedules for biometric data, and whether employers may use third parties to implement timekeeping and identification systems, are topics for bargaining between unions and management. States cannot bypass the mechanisms of federal law and authorize direct negotiation or litigation between workers and management.

Arbitration request. Moreover, the appeals court declined to send this dispute to arbitration. Aside from the fact that the employees did not request such a remedy from the district court, the appeals court pointed out that collective-bargaining agreements usually leave grievances to be worked out between the union and management. The CBAs in question did not permit employees to demand arbitration if the union was content to forego that procedure and, in this instance, the union had not requested arbitration. The appeals court was not authorized to usurp the union’s authority to decide whether a grievance with management needs an arbitrator’s resolution (or, indeed, whether there is any grievance to resolve).

Accordingly, the judgment of the district court was affirmed.

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