Where an employer is charged with violations of the Biometric Information Privacy Act, the claim is for violation of privacy rights, not a wage or hour violation, regardless of the use to which the employer puts the information.

The 1st District Appellate Court affirmed the decision of Cook County Associate Judge Franklin U. Valderrama.

Employees of the downtown Chicago Four Seasons Hotel Ltd. were given an employee agreement called “EmPact,” which they had 30 days to opt-out of. Opting out of the agreement means that an employee forfeits their severance but may remain as at-will employees.

The EmPact includes a six-step Complaint, Arbitration & Review for Employees, or CARE, process for resolving disputes, with the final step being mandatory, binding arbitration for disputes based on “(a) employment discrimination; (b) harassment as it relates to my employment; (c) a wage or hour violation; (d) or termination of my employment from the [h]otel.”

Tony Liu began working at the Four Seasons as bell attendant in 2006 and signed the EmPact agreement as well as a revised one in 2012.

Cathy Li began working as a housekeeper in 2010, and also signed the EmPact in 2010 and the revisions in 2012. Liu and Li both signed an acknowledgment in July 2017 consenting to Four Seasons storing their fingerprints and using fingerprints for tracking the employee’s hours worked.

On Nov. 9, 2017, Liu and Li filed a complaint on behalf of themselves and all others similarly situated, alleging that Four Seasons breached the Biometric Information Privacy Act which mandates that employers who collect biometric data provide full information to employees about the uses, storage and retention of such data, acquire releases for such use, store the data securely and destroy it in a timely manner.

Liu was terminated for poor performance on Oct. 10, 2017, but Li remains employed by Four Seasons. Four Seasons moved to compel arbitration, citing the EmPact and arguing that the claim was a “wage or hour violation” covered by CARE.

The trial court denied the motion and Four Seasons filed an interlocutory appeal, arguing that the court should compel arbitration because the biometric data was used for employee timekeeping, making it was a wage or hour violation.

The appellate court disagreed. The appellate court emphasized that the act is a law about privacy rights and that by accusing Four Seasons of violating the act, the plaintiffs were accusing them of a violation of privacy rights, not a wage or hour violation.

The appellate court held that a complaint over the accumulation and use of biometric data does not transform into a wage or hour claim simply because the employer was using that data for timekeeping purposes.

The appellate court, therefore, affirmed the circuit court’s decision.

Tony Liu and Cathy Li v. Four Seasons Hotel Ltd., et al.

No. 1-18-2645

Writing for the court: Justice Michael B. Hyman

Concurring: Justices Terrence J Lavin and Aurelia Pucinski

Released: Jan. 27, 2020