More than a year has passed since businesses moved to a virtual format in the wake of the Covid-19 global pandemic. Covid-19 is still circulating and new strains, including some more virulent strains, are still a concern for much of the world. We can no longer assume that the remote work place is merely a temporary convenience. While some businesses are in the process of returning their workers to the office, for many businesses, virtual offices is here to stay. All businesses, but especially small businesses, need to explore how to keep private client information confidential. Confidentiality is important not only for state and federal compliance laws, but also to serve client needs and expectations.
At the urging of the Plaintiffs’ bar, the Illinois State Legislature—at the last minute in a lame duck session, passed a draconian and unconstitutional new measure that will harm tort litigants for years to come if it is signed by the Governor and becomes law. Currently, prejudgment interest does not accrue on personal injury claims. The legislation—House Bill 3360, provides that prejudgment interest would accrue from notice of the injury, not the date of filing suit, and at a rate of 9%.
The world watched as thousands marched in protest and others stormed the US Capital Building this past week. The identities of few but the faces of many have been displayed on mainstream media and social media channels. Some with more frequency than others. Some of those faces may belong to your employees.
The Illinois Workplace Transparency Act required all employers to train employees on sexual harassment prevention by December 31, 2020, and requires training thereafter on an annual basis. If your company failed to do so, there is still time to comply to avoid penalties.
Employers may be able to mandate that employees get a COVID-19 vaccination before returning to the workplace. The EEOC has updated its COVID-19 webpage to include a section regarding guidance on whether an employer-mandated vaccination policy would violate various federal laws. While the EEOC guidance does not directly state that mandatory vaccination policies are lawful, it addresses various other employee protection laws predicated on the notion that such a mandate is lawful. According to the EEOC, employers are required to provide a safe workplace in which “….an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”
Time is running out. The Illinois Workplace Transparency Act requires all employers to train employees on sexual harassment prevention by December 31, 2020, and on an annual basis thereafter. This requirement applies to all employers with employees working in the State of Illinois. There is no Covid-19 pandemic response reprieve.
The COVID-19 pandemic has impacted our world in a variety of ways we could have never imagined. Opinions on the danger of the virus and how to deal with it also vary greatly. Perhaps the primary issue in the United States, and other countries, is how to balance public health and safety against the economic strain of mandated business shutdowns or restrictions. While the health, safety, and welfare of their constituents remains the top priority of most elected officials, pressure from the business community to help ensure its survivability has intensified during the recent coronavirus resurgence.
Many commuters consider 2018 as “the year of the scooter” with Bird and Lime having started an electric battery-operated scooter service in California late in 2017. With a maximum speed of 15 mph, these short-range electric vehicles consist of a narrow platform on which the rider stands with 1 foot in front of the other and a waist-high rod with handlebars for steering. After kicking off initially with 1 foot, riders accelerate and brake the scooter using triggers activated with their thumbs. The e-scooters are located and unlocked using a downloaded smartphone application, rides are paid for by the minute, and the ride can be ended anywhere the rider decides.
In a recent decision, the Seventh Circuit Court of Appeals held that a federal district court could hear certain Biometric Information Privacy Act (BIPA) claims. An issue in many BIPA lawsuits specifically, and in many data privacy lawsuits generally, is whether the court has subject matter jurisdiction to hear the case. The issue is usually raised by defendants seeking to dismiss the case; however, in Bryant v. Compass Group USA, Inc. (https://law.justia.com/cases/federal/appellate-courts/ca7/20-1443/20-1443-2020-05-05.html), the Plaintiff claimed that she lacked Article III standing and sought to have the case remanded to state court.
In Bryant, Plaintiff Christine Bryant’s employer installed vending machines owned and operated by Defendant Compass Group. Rather than accept cash, employees had to establish an account using their fingerprint to purchase food from the vending machines. During her orientation, Plaintiff and her co-workers scanned their fingerprints into the vending machine’s system to establish a payment link and create a user account. Bryant claimed that the process of collecting and retaining her fingerprint, and the fingerprints of her co-workers, violated Sections 15(a) and (b) of Illinois’ BIPA. Section 15(a) requires collectors of biometric information make public a retention schedule and guidelines for permanently destroying the biometric information, while Section 15(b) requires that collectors of biometric information obtain informed written consent before biometric information is obtained. Subsequently, Bryant brought a putative class action against Compass in the Circuit Court of Cook County alleging violations of these sections of BIPA.
Compass removed the action to federal court and Bryant moved to remand the action to state court claiming that the district court did not have subject matter jurisdiction because she lacked the concrete injury-in-fact necessary to satisfy the federal requirement for Article III standing. The district court agreed, finding that Compass’s alleged BIPA violations were bare procedural violations that caused no concrete harm to Bryant, and remanded the action to state court.
The Seventh Circuit’s decision reversed the district court, finding that the case was properly removed to federal court. For a plaintiff to have Article III standing, 1) they must have suffered an actual or imminent, concrete and particularized injury-in-fact, 2) there must be a causal connection between the injury and the conduct complained of, and 3) there must be a likelihood that this injury will be redressed by a favorable decision. Only the first prong of this test was at issue in Bryant. In informational injury cases, an injury inflicted by nondisclosure is concrete if the plaintiff establishes that the withholding impaired her ability to use the information in a way the statute envisioned. The Court held that Compass withheld substantive information to which Bryant was entitled and therefore deprived her of the ability to give the informed consent required by Section 15(b). Conversely, the Court held that Bryant had not suffered a concrete and particularized injury as a result of the Section 15(a) violation as this duty to disclose was owed to the public generally and not part of the informed-consent regime.
The Bryant decision provides litigants with the opportunity to decide the most advantageous forum to litigate BIPA claims, as both state and federal court are now available. However, the best strategy continues to be that a collector of biometric information should formulate a plan to comply with BIPA’s requirements prior to the collection of that information. If you have questions regarding litigation or compliance under Illinois’ Biometric Information Privacy Act, or questions regarding privacy and data security generally, contact Tim Hayes at firstname.lastname@example.org
On August 11, 2020, Illinois Governor. J.B. Pritzker was successful in a second attempt to criminalize business owners who fail to enforce his mask rules. Under Illinois’ new mask rule, local police and prosecutors may impose criminal fines up to $2,500 to enforce his emergency mask order.