We have been following litigation surrounding the Illinois Biometric Information Privacy Act (BIPA), and noting that many employers have been sued for using fingerprints for employees to clock into their jobs [view related posts].

This week, Southwest Airlines was successful in its quest to dismiss a proposed class action case that alleges that it required employees to clock in and out through a fingerprint scanner without their consent, which is an alleged violation of BIPA.

The case was dismissed because the judge found that the underlying claims invoked the employees’ collective bargaining agreement, as well as the Railway Labor Act, which require that arbitration or formal bargaining take place prior to filing suit.

The judge did not address the underlying claims alleging that the use of fingerprints without consent was a violation of BIPA, but did acknowledge that the workers would have had standing to sue under BIPA due to the allegations that Southwest shared their biometric information with third parties without their consent, which is a concrete harm.

The allegations are that Southwest was using an out-of-state third party to run the system, was disclosing the employees’ fingerprints to the third party without telling employees, and did not provide information to employees about what happens to their biometric data after an employee leaves employment with Southwest.