In Walton v. Roosevelt University, 2023 IL 128338 (Mar. 23, 2023), the Supreme Court of Illinois has ruled that the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 (Privacy Act) protections do not apply to union-represented workers because claims under the Privacy Act may require interpretation of their collective bargaining agreement with their employer and are preempted by Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. The decision, which relies heavily on two Seventh Circuit decisions, see Fernandez v. Kerry, Inc., 14 F.4th 644 (2021); Miller v. Southwest Airlines Co., 926 F.3d 898 (2019), may auger increasing judicial receptivity to a broad reading of federal labor law preemption of state worker protection laws.
When employees select a union representative, either by voluntary employer recognition or NLRB certification after victory in a representation election, under the auspices of the National Labor Relations Act of 1935, 29 U.S.C. § 151 et seq., they have essentially agreed to have the union serve as their exclusive bargaining agent, even if some employees would prefer direct negotiation with their employer. See J.I. Case Co, v. NLRB, 321 U.S. 222 (1944). The reason for this exclusivity rule is to enable the union to collectivize and thereby maximize employee bargaining power in the negotiation of a collective bargaining agreement (CBA). In the entertainment and sports industries, by contrast, unions have agreed to negotiate only minimum terms, permitting above-scale employees to seek better terms via talks with the employer.
The NLRA and LMRA (which for the most part amends the NLRA) do not generally preempt state law. Union-represented employees do not give up rights other workers have under federal, state, or local laws, unless the particular law excludes workers in the union-represented sector from coverage. State and local laws may be preempted by Section 301 of the LMRA, which by its terms provides only for federal jurisdiction over claims arising from CBA violations, but has been interpreted by the Court as a basis for establishing a uniform set of rules governing the interpretation of CBAs. The Court has held that such laws are preempted by Section 301, where they attempt (1) to regulate rights or obligations derived from CBAs, or (2) to regulate claims that in their cases in chief require the interpretation of CBAs. See Allis-Chalmers Corp. v, Lueck, 471 U.S. 202 (1985), In Lingle v. Norge Div., Magic Chef, Inc., 486 U.S. 399, 412 (1988), the Court held that a state retaliatory discharge was not preempted by Section 301 because the claim was based on independent state law, not requiring an interpretation of the CBA. The Court noted that notwithstanding the importance of uniformity of interpretation of CBAs, “different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.” (emphasis omitted).
Turning to Walton, the Illinois Privacy Act establishes a broad set of minimum rights for employees whose biometric information, e.g., fingerprints, are collected, stored, or disseminated by their employers without the employees’ informed consent. Walton’s claim, on behalf of a class of similarly situated, including like Walton himself union-represented employees, was that his employer did not obtain the employees’ consent. According substantial weight to the Seventh Circuit’s Miller and Fernandez decisions, the Illinois high court held that Walton’s claim was preempted by Section 301 of the LMRA because the union’s consent could be sufficient consent under the state Privacy Act, and whether that consent was informed or otherwise properly obtained required an interpretation of the parties’ “management right” clause, which provided in part: “the Employer shall have the exclusive right to direct the employees covered by the Agreement….”
Walton may turn on the fact that the state high court and earlier Seventh Circuit decisions assumed that the employees’ union could consent to the state law’s prohibited acts. This may not be true of most state and local privacy or other employment laws where unions are not recognized to have the authority to waive employees’ independent statutory entitlements. The high court’s reliance on the CBA’s management-clause rights clause is also in tension with Lingle and its progeny which provide that adjudication of a CBA does not generally trigger Section 301 preemption.
Reprinted with permission from the March 22, 2023 issue date of the “New York Law Journal” © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com
