important state law developments you need to know about right now

By Dr. Jim Castagnera, Esq.

 Partner, Portum Group International

In the Land of Lincoln, five-year limitations period applies to Illinois Biometric Information Privacy Act.

In Tims v. Black Horse Carriers, Inc., --- N.E.3d ---, IL 127801, WL 1458046 (Ill. 2023), former employees brought a class action against their employer, alleging violations of Biometric Information Privacy Act (BIPA) relating to the employer's scanning and use of employee fingerprints.

Background. The lead plaintiff, Jorome Tims, filed a class-action lawsuit against the defendant, Black Horse Carriers, Inc., his former employer, alleging that Black Horse violated; §15(a) of the Biometric Information Privacy Act, providing for the retention and deletion of biometric information, and §§15(b) and 15(d) of the Act, providing for the consensual collection and disclosure of biometric identifiers and biometric information, when it scanned the plaintiff's fingerprints.

Black Horse moved to dismiss the complaint as untimely filed pursuant to §13-201 of the Code of Civil Procedure, and the Cook County circuit court denied the motion, holding that the plaintiff's complaint was timely filed because the five-year limitations period codified in  §13-205 of the Code applied to violations of the Act. Tims subsequently amended his complaint to name Isaac Watson as an additional plaintiff and class representative.

Black Horse filed a motion to reconsider the circuit court's denial of its motion to dismiss and moved to certify, for immediate appeal pursuant to Illinois Supreme Court Rule 308, the question of which limitations period controlled claims under the Act. The circuit court denied the motion to reconsider but certified the question so an application for leave to appeal could be filed in the appellate court.

The appellate court allowed the interlocutory appeal and answered the certified question, holding that the one-year limitations period codified in §13-201 of the Code governs actions under §§15(c) and 15(d) of the Act and that the five-year limitations period codified in §13-205 of the Code governs actions under §§15(a), 15(b), and 15(e) of the Act. It then remanded the case to the circuit court for further proceedings.

The state supreme court also allowed the Illinois Chamber of Commerce, the Illinois Trial Lawyers Association, the National Employment Lawyers Association/Illinois, and the Employment Law Clinic to file amicus curiae briefs.

On appeal, Black Horse maintained that the Act is a privacy statute and should be governed by the one-year limitations period codified in §13-201 of the Code, as that limitations period applies to violations of privacy rights. The plaintiffs cross-appealed, asserting that, while the Act is a privacy statute, the five-year catchall limitations period, codified in §13-205 of the Code, should apply to claims under the Act. Both parties agreed that the appellate court erred in applying two different limitations periods to the Act and asked the high court to apply either the one-year limitations period or the five-year limitations period to the entire Act.

Analysis: One limitations period should govern. One of the purposes of a limitations period is to reduce uncertainty and create finality and predictability in the administration of justice, said the court, and the appellate court's decision to invoke two different statutes of limitations to different subsections of section 15 of the Act does not align with this purpose. Two limitations periods could confuse future litigants about when claims are time-barred, particularly when the same facts could support causes of action under more than one subsection of section 15. 

The state supreme court found its answer in Sundance Homes, 195 Ill. 2d 257, 253 Ill.Dec. 806, 746 N.E.2d 254, in which the court was tasked with determining whether tax refund claims would be governed by both the equitable doctrine of laches and the five-year catchall limitations period for civil cases. The court held that the five-year catchall limitations period applied—rejecting the bifurcation of tax refund claims into law and equity. In so doing, the court reasoned that “the legislature intended that a uniform and harmonious system of law apply to refund cases, and the maintenance of two time-bar standards for simple refund cases is inconsistent with that intent.” Relying on the reasoning in Sundance Homes, the court found that applying two different limitations periods or time-bar standards to different subsections of section 15 of the Act would create an unclear, inconvenient, inconsistent, and potentially unworkable regime as it pertains to the administration of justice for claims under the Act.

Interpreting language in Section 15. To determine which limitations period should apply to all subsections of section 15, the court began by analyzing the Act, requiring that it employ established principles of statutory construction.

The Act was enacted to help regulate “the collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information.” Based on the plain language of the Act, all five subsections of section 15 of the Act prescribe rules to regulate the collection, retention, disclosure, and destruction of biometric identifiers and biometric information. §15(a) regulates the establishment, maintenance, and adherence to a retention schedule and guidelines for destroying collected biometric information. §15(b) regulates and requires entities to provide notice and obtain written consent before collecting or storing biometric information. §15(c) regulates and prohibits the selling or otherwise profiting from collected biometric information. §15(d) regulates the disclosure or dissemination of biometric information without consent. §15(e) regulates the proper storage and protection of collected biometric information.

When the court considered not just the plain language of section 15 but also the intent of the legislature, the purposes to be achieved by the statute, and the fact that there is no limitations period in the Act, it found that it would be best to apply the five-year catchall limitations period codified in §13-205 of the Code. This would also further the court’s goal of ensuring certainty and predictability in the administration of limitations periods that apply to causes of actions under the Act.

Act does not specify a limitations period. Again, §13-205 of the Code provides that “all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued,” and Illinois courts have routinely applied this five-year catchall limitations period to other statutes lacking a specific limitations period.

Because the Act does not have its own limitations period; because the subsections are causes of action “not otherwise provided for”; and because the court must ensure certainty, predictability, and uniformity as to when the limitations period expires in each subsection, the Act is subject to the default five-year limitations period found in section 13-205 of the Code.

General Assembly's policy concerns accomplished by applying longer limitations period. In section 5 of the Act, the General Assembly provided a thorough list of goals it intended to accomplish as well as the ills it intended to ameliorate with the enactment of this statute—among them being securing “[t]he public welfare, security, and safety” of the public by “regulating the collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information.” The General Assembly found that “[a]n overwhelming majority of members of the public are weary of the use of biometrics when such information is tied to finances and other personal information.” It also noted that “[t]he full ramifications of biometric technology are not fully known” and that “[b]iometrics are unlike other unique identifiers that are used to access finances or other sensitive information. Biometrics are biologically unique to the individual; therefore, once compromised, the individual has no recourse, is at heightened risk for identity theft, and is likely to withdraw from biometric-facilitated transactions.”

In light of the extensive consideration the General Assembly gave to the fears of and risks to the public surrounding the disclosure of highly sensitive biometric information, reasoned the court, it would thwart legislative intent to (1) shorten the amount of time an aggrieved party would have to seek redress for a private entity's noncompliance with the Act and (2) shorten the amount of time a private entity would be held liable for noncompliance with the Act.

Further, the court noted that the defamation torts (libel and slander), which fall under section 13-201 of the Code, are subject to a short limitations period because aggrieved individuals are expected to quickly become apprised of the injury and act just as quickly when their reputation has been publicly compromised. In contrast, the full ramifications of the harms associated with biometric technology are unknown, and absent the Act's protections, it is unclear when or if an individual would discover evidence of the disclosure of his or her biometrics in violation of the Act. A shorter limitations period would prejudice those whom the Act is intended to protect. Therefore, the court found that a longer limitations period would comport with the public welfare and safety aims of the General Assembly by allowing an aggrieved party sufficient time to discover the violation and take action.

The court found that the five-year limitations period contained in §13-205 of the Code controls claims under the Act. Therefore, the court affirmed in part and reversed in part the judgment of the appellate court and remanded the case to the circuit court for further proceedings.

Golden State’s Labor Commissioner issues FAQs clarifying California Equal Pay Act.

On January 25, 2023, the California Labor Commissioner issued FAQs [found at: https://www.dir.ca.gov/dlse/california_equal_pay_act.htm], clarifying enforcement of the California Equal Pay Act, the state’s pay transparency law. The law requires employers with fifteen or more employees to disclose pay scales in job postings beginning January 1, 2023, and also expands pay data reporting requirements for employers with 100 or more employees. Finally, the law requires employers with fifteen or more employees to include pay scale information in any job posting. An excerpt of relevant questions from the FAQ follows below.

“What are the key differences between the former Equal Pay Act and the Equal Pay Act, as amended?

The main differences are that the current law:

• also prohibits race-, or ethnicity-based wage differences;
• eliminates the requirement that the jobs that are compared must be located at the same establishment;
• replaces a comparison of “equal” work with a comparison of “substantially similar” work;
• makes it more difficult for employers to justify unequal pay based on sex, race, or ethnicity;
• adds new express anti-retaliation protections for workers who assist employees with bringing claims under the Act;
• provides that an employer cannot prohibit workers from disclosing their wages, discussing the wages of others, or inquiring about others’ wages;
• prohibits employers from relying on an employee’s prior salary to justify the sex-, race-, or ethnicity- based pay difference.

Who is counted as an employee to determine whether an employer has 15 or more employees?

Although the statute does not specify how employers should count employees, the Labor Commissioner interprets this requirement consistent with how it counts employees for the purpose of 2022 COVID-19 Supplemental Paid Sick Leave and minimum wage rates, as detailed in previously issued FAQs on the topic [https://www.dir.ca.gov/dlse/SB3_FAQ.htm]. At least one of the employees must be currently located in California.

How is “pay scale” defined?

Section 432.3, as amended, defines “pay scale” to mean the salary or hourly wage range the employer reasonably expects to pay for a position. An employer who intends to pay a set hourly amount or a set piece rate amount, and not a pay range, may provide that set hourly rate or set piece rate.

Is an employer required to include the pay scale on job postings?

As of January 1, 2023, an employer with 15 or more employees must include the pay scale for a position in any job posting. If an employer with 15 or more employees engages a third party to announce, post, publish, or otherwise make known a job posting it must provide the pay scale to the third party and the third party must include it within the job posting. The Labor Commissioner interprets this to mean that the pay scale must be included within the job posting if the position may ever be filled in California, either in-person or remotely.”