In a prior blog post, we advised employers about a once little-known Illinois law, the Biometric Information Privacy Act (BIPA). The BIPA imposes numerous restrictions on how private entities collect, retain, disclose, and destroy biometric identifiers such as fingerprints, voiceprints, retina or iris scans, and scans of hand or face geometry. Businesses most often collect this information from employees, but advances in technology have caused a recent increase in the collection of consumers’ biometric information.
Following years of litigation, on January 25, 2019, the Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corporation, ruled that an individual can bring a lawsuit for a violation of the BIPA without showing actual harm resulted from the violation. In other words, a business may be held liable for violation of the BIPA for simply collecting biometric information if it does not strictly follow the BIPA guidelines, regardless as to whether a person was actually damaged.
As a result of this ruling, expect a dramatic increase in the number of lawsuits under the BIPA. In fact, less than a week after the Supreme Court’s decision in Rosenbach, class action lawsuits alleging violations of the BIPA were filed on behalf of current and former employees of Little Caesars Pizza, ABT Electronics, Choice Hotels and Warehouse Services Inc. It is now more important than ever to proactively limit your liability when collecting biometric information. In order to avoid liability for collecting biometric information, you must either (1) not collect such information or (2) develop a publicly available written policy in compliance with the BIPA. Under the BIPA, your policy must establish:
- A retention schedule for storing biometric information; and
- Guidelines for permanently destroying biometric information when the initial purpose for collecting it has been satisfied, or within 3 years of the individual’s last interaction with the company.
In addition, when collecting or otherwise receiving a customer’s or an employee’s biometric information, you must:
- Inform the individual in writing that the information is being collected, the purpose for collection, and the length of storage;
- Obtain a written release from the individual for the collection and storage of the information;
- Store and transmit all biometric information with the same or better security than used for confidential company information; and
- Not disclose, sell, lease, trade, or otherwise profit from biometric information unless the individual consents or disclosure is required by law.
If you have any questions about whether your biometric information policy complies with the law, or if you would like a policy and employee release drafted in accordance with the Biometric Information Privacy Act and other applicable laws, please contact Marcus & Boxerman at (312) 216-2720 or firm@marcusboxerman.com.
The Department of Labor (DOL) has proposed changes to the Fair Labor Standards Act’s (FLSA) tip pooling regulations. The proposed changes would roll back the Obama administration’s 2011 regulations that prohibited employers from distributing tips to anyone other than front-of-the-house staff who earned them. Following the 2011 Obama administration regulations, the DOL has maintained that tips earned by front-of-the-house employees–including servers, bartenders, and bussers–are the property of the employees, and that employers may not mandate that they be shared with back-of-the-house employees such as cooks and dishwashers. The current rules also allow for a “tip credit,” whereby employers can pay tipped employees less than the federal minimum wage, as long as tips make up the difference.
The National Labor Relations Board (NLRB) is scrutinizing employee handbooks that violate the National Labor Relations Act (NLRA), the law that protects an employees’ collective bargaining and organizing rights. The NLRB looks for workplace rules that restrict—or could be construed to restrict—employees’ right to engage with each other, to organize (including forming, joining or assisting labor unions) and to take other collective action. The language employers use in their employee handbooks is key, because provisions meant to protect the employer may violate the NLRA. The NLRB recommends employers use detailed wording, sufficient context and clarifying examples to prevent misinterpretation.
In a nearly unanimous vote by the Cook County Board on October 11th, the Cook County sweetened beverage tax has been repealed. Passed in early August 2017, the controversial tax was only in effect for two months before lawmakers decided to retire it. Proponents of the tax reasoned the tax is an effective way to fight obesity and other related health conditions, while also generating income for the county. Opponents of the tax argued that it damaged small businesses and led to plummeting store sales, as customers simply went across county lines to purchase beverages subject to the tax. Large corporations including PepsiCo and Coca-Cola spent millions of dollars fighting the tax. Lawmakers now have until the end of November to adjust the Cook County budget to account for the $200 million of revenue the County estimates the tax would have brought in. The repeal goes into effect December 1, 2017.
A once little-known law, the Illinois Biometric Information Privacy Act (“BIPA”), is now the subject of class actions by employees alleging that employers have misused their biometric information. This client update should help employers avoid unknowing violations of the BIPA and the significant risk of an employee class action lawsuit.
The Cook County Board of Commissioners recently passed the Earned Sick Leave Ordinance, requiring employers to provide paid sick leave to eligible employees. The Ordinance goes into effect July 1, 2017.
On August 19, 2016, Governor Bruce Rauner signed into law the Illinois Freedom to Work Act (the “Act”). The Act prohibits certain Illinois employers from entering into non-compete agreements with low-wage employees. The law takes effect January 1, 2017.
Restaurant owners can take advantage of many special deductions and credits providing substantial tax savings. Here are several to explore: