A Union Pacific locomotive
CHICAGO — A group of potentially thousands of truck drivers can move ahead with a class action lawsuit accusing railroad operator Union Pacific of scanning their fingerprints, allegedly in violation of Illinois' stringent biometrics privacy law, after a federal appeals panel agreed Union Pacific's contracts with Metra and other taxpayer-funded units of Illinois government don't protect it from a potentially big payout.
On Sept. 30, a three-judge panel of the U.S. Seventh Circuit Court of Appeals ruled in favor of named plaintiff Ernest Payton and many other truck drivers over the question of the reach of an exemption in the Illinois Biometric Information Privacy Act (BIPA), shielding government contractors from being sued under the law.
In the decision, the appeals court judges said the case comes down to the question of what the phrase "while working" means for the purposes of deciding which businesses should be shielded from lawsuits worth many millions of dollars or more, and which ones should not.
While Union Pacific argued the exemption should apply to block lawsuits filed against companies, like Union Pacific, which hold active contracts with state agencies, the courts agreed with plaintiffs that the shield should only protect companies from being sued for conduct that may otherwise violate the BIPA law if that conduct occurs directly "in the course of" performing work for state government and related agencies.
The decision, authored by Seventh Circuit Judge Frank Easterbrook, upheld the ruling of U.S. District Judge Jorge Alonso, who had sided with the plaintiffs, as well.
"All we have is a binary choice between 'during the time' and 'in the course of' as possible understandings of 'when working.' On that subject members of the state’s appellate judiciary have unanimously favored 'in the course of.'
"Because we think it unlikely that the Supreme Court of Illinois would disagree, the decision subject to our interlocutory review is affirmed," Easterbrook wrote.
Union Pacific has been defending itself in court against the lawsuit since 2024, when attorneys from the firm of DJC Law, of Chicago and Austin, Texas, lodged the action in Chicago federal court on behalf of potentially thousands of truck drivers whose fingerprints were scanned when entering the company's rail yards.
The lawsuit, like thousands of others filed against employers in Illinois in the last decade, accuses Union Pacific of failing to secure authorization from the drivers and provide them with notices concerning how their data may be used, shared, stored, and ultimately destroyed, before requiring them to digitally scan their fingerprints to verify their identity, allegedly as required by BIPA.
Union Pacific and other railroad operators have been among the largest employers targeted by such class actions under BIPA in state and federal courts in Illinois.
The potential financial stakes are quite high in the actions. Under the BIPA law, plaintiffs can demand damages of $1,000 or $5,000 per violation. Further, under an interpretation of the law affirmed by the Illinois Supreme Court, Union Pacific could have been on the hook to pay that amount for each and every fingerprint scan, not just per truck driver.
When multiplied across thousands of drivers scanning their fingerprints numerous times, under the Illinois Supreme Court's interpretation, potential claims for damages could quickly climb into the hundreds of millions or even billions of dollars.
To stop the potential for such astronomical and ruinous financial payouts, Illinois state lawmakers revised the BIPA law to explicitly state such damages should be calculated per person, not per scan.
Earlier this year, the Seventh Circuit ruled those changes also should apply to BIPA-related lawsuits, like the truck drivers' case, which were filed before the reforms were signed into law.
However, Union Pacific could still face a potentially stiff payout, even under the reduced damages calculations.
So, the railroad has continued to fight the lawsuit.
In 2025, the company argued it should be protected against the lawsuit by a clause in the BIPA law exempting governments from the law.
Union Pacific asserted that, as an ongoing government contractor working with several government agencies in Illinois, those exemptions should be extended to also protect the railroad.
Specifically, Union Pacific pointed to its contracts with Metra commuter rail and the Illinois Department of Transportation, among others.
In August 2025, Judge Alonso said he believed he believed the governmental exemption shouldn't apply to a company who was merely a government contractor. He asserted such a holding would lead to "absurd" results, including shielding large companies from lawsuits under BIPA, "even when the company's BIPA violations were entirely unrelated to the contract."
He noted, for instance, that Union Pacific pointed to work the company had performed at the direction of IDOT on a railroad crossing in southern Illinois, hundreds of miles from UP's Chicago area intermodal facilities and rail yards at the heart of the truckers' BIPA lawsuit.
The judge said that state contract work is "entirely unrelated to the collection of truck drivers' fingerprints at (UP's) intermodal facilities."
UP, however, secured permission to appeal that finding, and the Seventh Circuit agreed to take up the case.
Easterbrook said the court did so because the Illinois Supreme Court had yet to unravel the potentially sticky question over what the phrase "when working" means in the BIPA provision that reads: "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.”
In his decision, Easterbrook further noted the court agreed that "the stakes appeared to be substantial."
Since accepting the case, however, the appeals panel noted a total of three Illinois state appeals courts have weighed in on the question, all agreeing that the exemption shouldn't be read to protect state contractors, except if they are being sued for fingerprint scans and other biometric collections conducted "in the course of" performing work for the state or related agencies, like Metra.
Our task when dealing with an issue of state law is to read it the way that we think that the state’s highest court would read it," Easterbrook wrote. "The Supreme Court of Illinois has yet to consider the meaning of (the state contractor exemption.)
"But we do not see a good reason to think that it would disagree with (the appellate courts," he said.
Union Pacific is represented in the case by attorneys with the firm of Latham & Watkins, of Chicago.
