Litigation Blog

Seventh Circuit Appellate Briefs Filed in Southwest Airlines Biometric Case Involving Collective Bargaining Agreements

 On April 18th, Southwest Airlines Co. filed a response brief with the Seventh Circuit Court of Appeals in the Jennifer Miller, et al. v. Southwest Airlines Co. matter (Court No. 18-3476).

The suit involves allegations by the Miller Plaintiffs, ramp workers or operations agents for Southwest at Chicago Midway International Airport, that in 2006 Southwest began scanning employees’ fingerprints for the employees to sign in and out of work. The fingerprints were used as part of a time clock system that tracks employees’ attendance. According to the employees, Southwest did not ask their permission to collect their finger prints or publish a policy regarding the fingerprint collection. The workers alleged that the airline never got their permission to transmit the information to the time clock software program and did not tell employees what happened to their fingerprint data upon an employee leaving the company.

In response, Southwest moved to dismiss the case – and prevailed – by arguing that the union-represented employees’ lawsuit was covered by Collective Bargaining Agreements (CBA) that designated the Transportation Workers Union of America as the bargaining agent for workers. Southwest argued that the CBAs included a four-step grievance and arbitration procedure. Northern District of Illinois Judge Marvin E. Aspen agreed with Southwest and ordered that the employees’ claims invoked the CBAs and the Railway Labor Act, which called for arbitration or formal bargaining between the union and the employer. Following this, the Southwest employees filed a Second Amended Complaint in which they removed all allegations concerning compensation-related injuries and argued that their claims fell under the Biometric Information Privacy Act (BIPA), which is independent of the labor agreements. Again, Judge Aspen disagreed and dismissed the suit.

The Southwest employees appealed the Judge’s ruling. In their appellate brief filed with the Seventh Circuit, the Southwest employees argue that their claims involving BIPA are separate and distinct from the CBAs. The employees argue that the CBAs contain no reference to BIPA and that the union did not have the power to act as the bargaining agent for the employees’ grievances related to the collection of their fingerprints. In its response brief, Southwest argues that the employees’ arguments are based on distinguishable case law from the Ninth Circuit and that the lower court’s dismissal of the Second Amended Complaint was proper because Southwest’s Motion to Dismiss asserted the non-frivolous argument that the CBAs would resolve the employees’ claims related to BIPA.

No date for oral argument has been set, however, the Court’s decision will have implications for both cyber security front and employment. If the Court determines that the employees’ claims related to BIPA do not fall under the CBAs, it is likely we will see many more employee lawsuits in the future related to BIPA and allegations as to employers’ collection of fingerprints, facial recognition, etc. For employers and unions, it will shed light on the scope of CBAs as they are currently written and whether they cover claims related to data collection such as this.

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