Illinois Third District Appellate Courthouse, Ottawa, Illinois
OTTAWA, ILLINOIS — A state appeals panel has limited private companies’ ability to escape class action biometrics lawsuits by using an exemption intended for government contractors.
The decision came in a case lodged by named plaintiff Tiara Thomas against Cornerstone Services. Thomas accused the company of violating the Illinois Biometric Information Privacy Act by requiring her and other workers to use a fingerprint-scanning time clock while she worked there from 2020 through 2022. But Cornerstone, which said it draws the bulk of its revenue from a contract with the Illinois Department of Human Services to provide housing and support to people with disabilities, moved to dismiss the complaint by arguing government contractors are exempt from certain BIPA guidelines.
Will County Circuit Court Judge Roger Rickmon denied that motion in April 2024, noting Cornerstone doesn’t exclusively do government work.
He later asked the Illinois Third District Appellate Court to answer Cornerstone’s two questions: Whether the exemption applies only to contractors who exclusively do government work; and, if it doesn’t, to clarify the phrase “when working for the state agency or local unit of government," as it is used in the BIPA law to describe exempted government contractors.
In November 2024, the Illinois Third District Appellate Court denied Cornerstone’s application for leave to appeal, but the Illinois Supreme Court in March 2025 directed a vacation of that order and told the panel to answer the questions. Justice Matthew Bertani wrote the panel’s opinion, filed April 28; Justices Liam Brennan and Linda Davenport concurred.
Bertani said both questions rely on a specific phrase contained within BIPA stipulating “nothing in this Act shall be construed to apply to a contractor, subcontractor, or agent of a state agency or local unit of government when working for that state agency or local unit of government.”
The panel explained the only relevant precedent is a 2022 Illinois First District Appellate Court opinion, Enriquez v. Navy Pier, with the crux of that class action being identical: an allegation that “private-entity employers violated (BIPA) through the wrongful dissemination of their fingerprints related to the use of a biometric time clock” and the employer seeing dismissal under the contractor exemption.
Bertani said that panel “had little difficulty” finding the exemption applied because the employers’ “sole purpose was to develop, operate, and maintain Navy Pier in place of a local government unit that relinquished its authority over these responsibilities.” However, he added “Cornerstone offers privatized services outside of its work for DHS.”
Although the panel observed BIPA doesn’t specify the exemption only applies to firms that exclusively do government work, it said the phrase “when working for” is determinative in resolving the second question.
“According to Cornerstone, a government contractor is exempt so long as it is working under a government contract at the same time as a potential claim arises,” Bertani wrote. “Thomas interprets the word ‘when’ as a subordinate conjunction explaining under what circumstance the exemption shall apply. Read as part of a conjunctive phrase, she argues the word ‘when’ can encompass multiple meanings: one similar to Cornerstone’s construction (‘at or during the time that’) and others indicating the word denotes an understanding beyond a mere timeframe (‘just at the moment that’ and ‘in the event that’). She argues that in light of these multiple meanings, the exemption is ambiguous.”
The panel found no such ambiguity, observing “erroneous readings stem from assigning too much import on one word in the exemption which, as a result, divorces the word ‘when’ from the remainder of the exemption’s adverbial phrase.”
If lawmakers wanted to give all contractors categorical exemption, Bertani continued, the qualifying phrase would be meaningless. By including the phrase, there is obvious intent to identify “a nexus between the violation of (BIPA) and the scope of the defendant’s work with the government for the exemption to attach.”
The panel concluded by addressing Cornerstone’s argument about the potential for an “unworkable scheme” of patchwork exemptions solved only by separating workforces to ensure BIPA compliance. Those concerns, Bertani said, are beyond the purview of an appellate panel when the statutory language is so clear, adding that “Parenthetically, we observe that (BIPA) provides various alternatives for private entities to comply with the dissemination of biometric identifiers and information, e.g., receiving the necessary consent.”
Under Cornerstone’s position, he wrote, any entity with any government contract would always be exempt from BIPA dictates, and “That interpretation would invalidate the intended purpose of the Act, which seeks to protect the public from private entities that compromise biometric data.”
Cornerstone has been represented by Seyfarth Shaw, of Chicago.
Thomas is represented by Vaziri Law, of Chicago.
