Seventh Circuit Rules for Shook Client in Biometric Privacy Case Involving Collective Bargaining Agreement

Shook obtained a groundbreaking ruling on the reach of state biometric privacy laws when the Seventh Circuit held that disputes about the interpretation or application of a collective bargaining agreement related to the use of fingerprint-scanning time clocks by air carriers must be determined by an adjustment board under the federal Railway Labor Act (RLA). Melissa Siebert led the Shook team, with assistance from partners Tristan Duncan, Bill Martucci, Al Saikali, Gary Miller and Matthew Wolfe, and Associates Erin Hines, Ruth Anne French-Hodson and Jon Studer

The ruling was the result of two consolidated appeals: Miller and Johnson v. United Airlines, Inc., No. 19-1785. In both, union employees of the air carriers alleged the carriers violated biometric data collection and storage protocols under the Illinois Biometric Information Privacy Act (BIPA). The airlines asserted that the unions consented to biometric timekeeping, either expressly or through collective bargaining agreements’ management-rights clauses, and that the unions had been given proper notice. 

In Miller v. Southwest Airlines, the district court dismissed for improper venue, ruling that the dispute should be decided by an adjustment board and that attempts by Illinois law to give workers rights to bypass unions and deal directly with an air carrier were preempted by the RLA. But the Seventh Circuit said that ruling wasn’t about venue–it was either a judgment on the pleadings or dismissal for lack of subject matter jurisdiction. In Johnson v. United Airlines, the defendants removed the case to federal court under the RLA and the Class Action Fairness Act; that court also said the dispute should heard by an adjustment board, but remanded to state court for lack of jurisdiction. 

To begin, the Seventh Circuit said, a dispute about the terms of a collective bargaining agreement is properly resolved by an adjustment board. “How workers clock in and out is a proper subject of negotiation between unions and employers—is indeed, a mandatory subject of bargaining … [a]s a matter of federal law, unions in the air transportation business are the workers’ exclusive bargaining agents,” the Court said. And whether the unions did consent to biometric timekeeping is “properly not in this record, as they are topics for resolution by an adjustment board rather than a judge.” Moreover, the Court said that the privacy of biometric data was no different from the privacy of other employee issues, “such as drug testing, that are routinely covered by collective bargaining.” 

Holding that the dispute was preempted by federal law, the Court affirmed the judgment in Miller and vacated Johnson, remanding with instructions to refer the parties’ disputes to an adjustment board. 

The case is Miller v. Southwest Airlines Co., No. 19-1785 (7th Cir.).