Illinois Supreme Court Opens Door for Massive Damage Awards in Biometric Cases: What You Need to Know

03/07/2023

By: HR NETwork Inc

HR NETwork

We Put the Human Back
In Human Resources

Cothron v. White Castle

The Illinois Supreme Court just addressed the way “violations” under the Illinois Biometric Information Privacy Act (BIPA) are determined. Under this ruling, a separate claim accrues each time a private business scans or discloses an individual’s biometric information or identifier without prior written consent— rather than just the first time it happens.

This means IL employers may face steep penalties even for technical “violations” each and every time an employee provides their biometric information, such as when they use fingerprints to clock in and out of shifts.

What Does BIPA Require?

BIPA requires that private entities — including employers — that collect or maintain employees’ fingerprints, retinal or iris scans, voiceprints, hand scans, or face geometry, must first receive written consent from the employee. Covered entities also must develop a publicly available policy that establishes the retention schedule for the applicable biometric data.
Notably, the act’s requirements apply to information derived from biometric data, which could include electronic or mathematical representations of biometric data. The statute also contains various data retention requirements concerning individuals’ biometric data.

Failure to comply with BIPA’s requirements can result in liquidated damages of $1,000 per negligent “violation” and $5,000 per intentional “violation,” or actual damages, whichever is greater. Employees do not need to show that they have suffered any actual harm in order to prevail. The law also provides for attorneys’ fees, costs, and any other relief that a court may deem appropriate.

Even a small employer using a biometric time clock for five years and has 10 employees – instead of looking at $10,000 in claims you could be looking at 1,000 times that over the course of five years.

The Illinois Supreme Court’s decision in Cothron determined when a claim or “violation” under BIPA accrues. Here are the five key takeaways you should note from the ruling:

  • Every scan counts: In its ruling, the sharply divided court held that a separate claim accrues under the act each time a private entity scans or discloses an individual’s biometric information or biometric identifier in the absence of prior written consent.
  • Steep penalties: When an employee provides their biometric information or biometric identifier (whether to clock in or out for a shift, or any other purpose), each and every such instance is an independent violation that is subject to a new $1,000 (or $5,000) liquidated damages penalty.
  • Significant consequences for employers: Even a per person definition of a “violation” under the act led to astronomical damages awards and settlements, but a per scan assessment will likely be exponentially higher.
  • Court punts to legislature: With respect to the ruinous consequences that many employers may face as a result of the court’s interpretation, the court’s majority noted that it was up to the legislature to limit the damages that may be assessed. In any event, it said, the likely dire consequences that employers are concerned about may not pan out because:

    damages under the act are discretionary; and
    trial courts overseeing class actions can equitably fashion awards and settlements.
  • Dissent notes absurd consequences: According to the dissent, absurd consequences (such as ruinous damages) could not have been the legislature’s intent in enacting BIPA. “Imposing punitive, crippling liability on businesses could not have been a goal of the act,” the dissent said. Nevertheless, until the court reconsiders this question, the majority’s interpretation prevails, and businesses will be subject to a per-scan assessment under BIPA

Red Flag Tips

These measures are essential to defending against claims under the act:

  • Remain vigilant in complying with BIPA’s requirements.
  • BIPA requires strict compliance before, during, and after collecting individuals’ biometric information and biometric identifiers
  • Implement lawful policies, procedures, and authorizations before you collect any biometric data.

Genoveva Godoy-Thomas

Genoveva Godoy-Thomas joined HR NETwork in October of 2022. She was born in Guatemala, spent her formative years in Fairfax, Virginia and spent over 20 years living in Bethesda, Maryland. As a teen she spent her summers in Orange County where she currently resides. She has native fluency in both English and Spanish.

A seasoned human resource professional, having worked at Marriott International for 23 years in various Human Resources related roles in addition to working as a Human Resources manager/office manager for an Estate planning firm. She also holds a B.S. in Business Management and Human Resources Management from the University of Maryland.

Genoveva enjoys volunteering at First Tee golf photographing events, actively volunteering at her son and nieces’ school when needed. She loves to spend her time with her son enjoying the outdoors and teaching him to love and respect nature. 

Michelle Brubaker

Michelle Brubaker, the Business Manager of HR NETwork, has been with the company for 16 years. Joining the team as an HR Coordinator, she quickly worked her way up to Executive Assistant and on to her current role as Business Manager. Handling all things business-related including contracts and accounting, she is the unwavering support of HR NETwork.


Michelle has an impressive resume with almost 20 years of experience in supervising, managing, and motivating teams. Her strengths lie in building trust with her colleagues and clients, delivering results, and creating efficient processes to align with the company’s mission. Her passion and dedication have made her an integral part of the business.

She believes our clients are an extension of the HR NETwork family and genuinely loves assisting them. “It’s a great feeling knowing during critical times, we are able to put their minds at ease and hold their hands through them”.

Outside of work, Michelle enjoys travelling, country music and all things self-development. She has a fur baby named Buddy and loves being outdoors with him as well.

Shannon Martin

Shannon Martin, Senior Human Resource Professional brings over thirty years of human resources experience and expertise from Fortune 500 high-technology and service companies. Shannon has held both HR leadership and consulting roles. She has supported clients across a variety of industries including fiduciary services and investment management, consumer and real estate information, health care, beauty, and a large IT Infrastructure group.

Her scope of experience is broad and progressive and the disciplines she finds to be most rewarding are: Strategic Planning, Organizational Development Leadership Development, Change Management, Performance Management Coaching and Mediation & Conflict Resolution. 

Shannon has “hands-on” experience implementing mergers and acquisitions and building HR Departments. She has completed extensive coursework in communication and excels at building organizational processes that bring cohesion and engagement. She enjoys motivating and mentoring employees to help them achieve increased business performance.  

Shannon holds a Human Resource Management Certificate from UC Irvine.  She is a certified Senior Professional in Human Resources (SPHR).

Shannon considers herself an HR geek and finds reward when solving a challenge creatively. Shannon earned the Radio Rookie of The Year Award from KBPK, a college station. She also earned the Leadership Award presented by First American Trust Company. A cowgirl at heart, she loves being outside and working with animals of any kind.

Michelle Odell

Michelle Odell is currently a Talent Acquisition and Human Resources Manager with HR Network and has experience ranging from Recruiting, General HR, Employee Relations and Training.  She enjoys helping employees navigate through questions they may have with career development, understanding benefits, policies, or recruitment. 

Michelle has a Bachelor’s degree from California State University, Fullerton and majored in Psychology with an emphasis in Human Resources.  She spent some time away from HR Network to recruit for a company bringing them from 5 to 130+ employees.  She was happy to return to HR Network in 2019 and is enjoying being part of the team and learning about new laws and practices. 

Michelle was born and raised in California and has three children, three cats, two dogs, a McCaw, and a husband

Lee Anne Woods

The newest member of our team, Lee Anne Woods is an HR Administrator and has been with HR NETwork for 4 months. She previously worked in Human Resources in the mortgage and banking field, as well as doing secondary marketing for 10 years. Lee Anne decided to join HR NETwork when she realized how rewarding it is to be able to help clients navigate the crazy world of HR! “What I like about HR NETwork is how much we care about our clients, and how much we value learning and growing, so we may give them the most up to date information and trends out there!”

Lee Anne has a husband and two grown daughters. She enjoys travelling around the country and watching her daughters sporting events!

Lorraine Calder

Lorraine Calder has been an HR Manager at HR NETwork for 12 years. Since making a major movie from the UK to the US in 1997, she has enjoyed keeping up with the everchanging CA labor laws. She believes knowledge is a powerful tool to have, and is always happy to share her knowledge and experiences with our clients, along with the many HR trainings we provide. As a people person, Lorraine really enjoys making relationships with our clients, and is happy that our clients and vendors put their trust and confidence in our team. She gets great satisfaction at the end of the workday, knowing that she has achieved something special and values being part of a great and caring team!

Lorraine enjoys spending time with her three grandsons and two granddaughters. “Nothing is impossible if you set your mind to it, I am living proof of that.”

Michelle Espinoza

Michelle Espinoza joined the HR NETwork team in 2014 in the capacity of HR Manager and has more than 10 years of progressive management experience in human resources. She is now the senior HR Manager at HR NETwork and leads the HR management team in supporting our clients. 

Her career began in Talent Acquisition where she acquired a strong aptitude in employee relations.  She realized that a lot of companies needed help in navigating through the endless California employment laws and legislation. This led her to transition to Human Resources to focus on helping companies maintain legal compliance.  

Michelle has a keen understanding that business processes are vitally important to any business sector and apply to all types of organizations.  Realizing that the commonality amongst various industries generally results in the same matters led Michelle to what she truly enjoys – strengthening the partnership with our clients in HR matters.  

Michelle holds a B.S in Business Management with an emphasis in Human Resources.  

During her free time, she enjoys fitness, outdoor activities, spending time with family and friends.