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Miller v. Southwest Airlines Co.

United States Court of Appeals for the Seventh Circuit

May 28, 2019, Argued; June 13, 2019, Decided

No. 18-3476, No. 19-1785


 [*900]  Easterbrook [**2] , Circuit Judge. We have consolidated two appeals that pose a common question: whether persons who contend that air carriers have violated state law by using biometric identification in the workplace must present these contentions to an adjustment board under the Railway Labor Act (RLA), 45 U.S.C. §§ 151-188, which applies to air carriers as well as railroads. 45 U.S.C. §181. The answer is yes if the contentions amount to a "minor dispute"—that is, a dispute about the interpretation or application of a collective bargaining agreement. 45 U.S.C. §§ 151a, 184; Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252-53, 114 S. Ct. 2239, 129 L. Ed. 2d 203 (1994). Plaintiffs insist that a judge should resolve their contentions, while defendants contend that resolution belongs to an adjustment board.

The claims in each suit arise under the Biometric Information Privacy Act (BIPA), 740 ILCS 14/5 to 14/25, which Illinois adopted in 2008. ] This law applies to all biometric identifiers, which the statute defines to include fingerprints. 740 ILCS 14/10. Before obtaining any fingerprint, a "private entity" must inform the subject or "the subject's legally authorized representative" in writing about several things, such as the purpose of collecting the data and how long they will be kept, and obtain the consent of the subject or authorized representative. 740 ILCS 14/15(b). The private entity also must [**3]  establish and make available to the public a protocol for retaining and handling biometric data, which must be destroyed "when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual's  [*901]  last interaction with the private entity, whichever occurs first." 740 ILCS 14/15(a). Sales of biometric information are forbidden, 740 ILCS 14/15(c), and transfers are limited, 740 ILCS 14/15(d). Private entities must protect biometric information from disclosure. 740 ILCS 14/15(e).

Both Southwest Airlines and United Airlines maintain timekeeping systems that require workers to clock in and out with their fingerprints. Plaintiffs contend that the air carriers implemented these systems without their consent, failed to publish protocols, and use third-party vendors to implement the systems, which plaintiffs call a forbidden disclosure. Southwest and United contend that the plaintiffs' unions have consented—either expressly or through the collective bargaining agreements' management-rights clauses— and that any required notice has been provided to the unions. The air carriers insist that, to the extent these matters are disputed, an adjustment board rather than a judge must resolve the difference—and [**4]  that if state law gives workers rights beyond those provided by federal law and collective bargaining agreements, it is preempted by the Railway Labor Act.

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926 F.3d 898 *; 2019 U.S. App. LEXIS 17803 **; 2019 L.R.R.M. 218559; 169 Lab. Cas. (CCH) P11,170

JENNIFER MILLER, SCOTT POOLE, and KEVIN ENGLUND, Plaintiffs-Appellants, v. SOUTHWEST AIRLINES CO., Defendant-Appellee.DAVID JOHNSON, individually and on behalf of a class, Plaintiff-Appellee, v. UNITED AIRLINES, INC., and UNITED CONTINENTAL HOLDINGS, INC., Defendants-Appellants.

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 18 C 86 — Marvin E. Aspen, Judge. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17 C 08858 — Virginia M. Kendall, Judge.

Johnson v. United Air Lines, Inc., 2018 U.S. Dist. LEXIS 127959 (N.D. Ill., July 30, 2018)Miller v. Southwest Airlines Co., 2018 U.S. Dist. LEXIS 143369 (N.D. Ill., Aug. 23, 2018)


biometric, Railway Labor Act, adjustment board, fingerprints, air carrier, state law, collective bargaining agreement, collective bargaining, class action, federal law, bargaining, removal, private entity, state court, Fairness Act, consented, employees, clock, suits

Governments, Legislation, Statutory Remedies & Rights, Labor & Employment Law, Employee Privacy, Disclosure of Employee Information, Civil Procedure, Removal, Postremoval Remands, Appellate Review, Special Proceedings, Class Actions, Class Action Fairness Act, Appeals, Reviewability of Lower Court Decisions, Preliminary Considerations, Specific Cases Removed, Business & Corporate Compliance, Labor & Employment Law, Wage & Hour Laws, Statutory Application, Collective Bargaining & Labor Relations, Interpretation of Agreements, Collective Bargaining & Labor Relations, Transportation Law, Air & Space Transportation, Personnel, Enforcement of Bargaining Agreements, Federal Preemption, Constitutional Law, Supremacy Clause