The U.S. arm of the entertainment-venue operator was named in a proposed class-action suit by two former employees who allege that Illinois state law was violated when they were made to use fingerprint scanners to clock in and out of work and for breaks. But Top Golf says the fact that the plaintiffs originally claimed that “accidental injury” was caused by the practice, in the form of “emotional anxiety and distress,” means the suit should be dismissed, because the charges of violations of the Biometric Information Privacy Act should be preempted by workers’ compensation laws.
Top Golf USA Inc. has urged an Illinois federal court to toss a suit by two former employees that alleges the company violated state law by making them use fingerprint scanners to clock in and out at work and from breaks. Top Golf’s motion, filed on October 31, said the claims would be preempted by worker’s compensation laws, Law360.com reported.
According to the motion filed by Top Golf on October 31st, Thomas Burlinski and Matthew Miller’s most recent amended complaint, filed in September and then moved to federal court in October, alleges “accidental injuries” against them, which are expressly covered under the Illinois Workers’ Compensation Act (IWCA), Law360.com reported. As a result, their claims of violations of the Biometric Information Privacy Act (BIPA) must be dismissed, Top Golf told the court.
According to court documents, Burlinski and Miller were employees of Top Golf and were required to use their fingerprints to clock into work and to mark breaks and the end of their shifts, Law360.com reported. In the proposed class action suit, they claim that by taking their fingerprint information without permission, Top Golf violated the BIPA and owes them damages.
Top Golf, however, says that because the complaint does not allege the company intentionally sought to harm them, their claims are preempted by the IWCA and must be dismissed, Law 360.com reported.
In addition, Top Golf said the original, unamended complaint that was first filed in March included claims for “emotional distress and anguish,” which would put the plaintiffs’ claims squarely under the IWCA. Those claims were removed in the amended complaint, according to the motion, and the company urged the court to keep that in mind and not let Burlinski and Miller “plead around” a motion to dismiss, Law360.com reported.
Top Golf also said that dismissing the claims as preempted under the IWCA would not prevent the plaintiffs from suing under the BIPA for an injunction to stop the alleged violation; it would only stop their claims for monetary damages, Law360.com reported.
The company also said the claims should be time-barred, Law360.com reported. Although the BIPA does not include a statute of limitations, under Illinois law, the most applicable statute applies, according to the complaint. Because Burlinski and Miller allege their privacy was violated, the most applicable statute is Illinois’ privacy law, which has a one-year limit, according to the October 31st motion to dismiss filed by Top Golf. As such, because both first used the fingerprint scanners in 2017, their claims are time-barred, Top Golf said.
Alternately, Top Golf said, Burlinski and Miller plead personal injuries that are subject to a two-year limitation, so any claims of members of the class action from before March 2017 should also be time-barred, Law360.com reported.
An attorney for Top Golf declined to comment after the motion was filed, Law360.com reported, and representatives for Burlinski and Miller could not immediately be reached for comment.
The case is Burlinski et al. v Top Golf USA Inc. et al., case number 1:19-cv-06700, in the U.S. District Court for the Northern District of Illinois.