Illinois’ Biometric Information Privacy Act (“BIPA”) has produced some of the largest jury verdicts ever seen in employment law. These verdicts, some of which exceed $100 million, result from employers’ use of biometric devices without proper notice to employees. Relief from these crushing verdicts is in sight, though, as a result of a recent amendment to the law.

Illinois Governor JB Pritzker signed Senate Bill 2979 (the “Amendment”) into effect on August 2, 2024. The Amendment changes how BIPA claims are structured by limiting the number of claims an individual can bring. Previously, under the Illinois Supreme Court’s ruling in Cothron v. White Castle System, Inc., each instance of unlawful collection, storage, or use of biometric information could result in separate damages, assessed on a “per scan” or “per login” basis. The Amendment now consolidates multiple alleged collections of an individual’s biometric data into a single violation, limiting recovery to one instance. This aims to reduce financial liability for businesses and potentially decrease the number of BIPA claims.

Additionally, the Amendment expressly permits the use of electronic signatures for BIPA consent forms. This change is unlikely to significantly impact employers, however, as many were already using electronic signatures under the Uniform Electronic Transactions Act.

The Amendment does not specify whether it applies retroactively to current claims. While Illinois law generally presumes amendments apply retroactively, the application of this specific Amendment could ultimately be determined by the Illinois Supreme Court.

Employers should celebrate the Amendment’s mitigation of excessive liability that followed the White Castle decision, but they should also use this development as a reminder to get and retain the proper notices from employees before using biometric technology.