Monday Morning Minute
In This Issue
BIPA Claim Excluded From Mandatory Wage & Hour Arbitration
DOL Issues Opinion Letter On Two Areas of FMLA
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                  April 22, 2019


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This month, the Illinois First District Appellate Court concluded that Four Seasons Hotel employees were not compelled to arbitrate a Biometric Information Privacy Act ("BIPA") class action lawsuit based upon alleged violations that the hotel failed to comply with BIPA's  notice and written consent, collection, storage, protection and destruction requirements.  Liu v. Four Seasons Hotel (April 9, 1979).  The arbitration submission clause signed by each employee required that "wage and hour" violations, as well as arbitrability determinations, be decided by an arbitrator.  Each BIPA violation subjects an employer to $1000 or actual damages, if greater, for negligent violations, and $5000 or actual damages, if greater, for intentional violations, plus attorney's fees and costs.   
The First District Appellate court affirmed the trial court's determination that BIPA violations were not covered by the "wage and hour" violations clause in the mandatory arbitration submission agreement, even though the violations occurred as a result of using fingerprint biometrics to keep track of hours worked.  The court reasoned that the claims were not based upon wage and hour violations as expressed in numerous state and federal wage and hour laws and did not involve improperly denied earned compensation payments.  Rather, the sole violations alleged were limited to specific violations of BIPA designed to protect privacy.  The First District noted that BIPA is a privacy law which applies to any entity, whether they are an employer or not, and to violations that occur in a workplace or elsewhere.  Accordingly, its privacy protections cannot be pigeonholed to wage and hour violations only, and therefore the hotel's employees retained access to the courts.   
This Four Seasons case highlights the importance of having a well crafted mandatory arbitration agreement to ensure foreseeable claims are subjected to arbitration on a "one-on-one" arbitration basis, and not subject to class or collective action arbitration.  Spognardi Baiocchi has extensive experience in structuring and litigating arbitration submissions requiring one-on-one arbitrations.  Call any SB attorney if you would like to discuss matters on a confidential basis.  
The DOL has released an opinion letter on two areas of the Act:  

1.  An employer may not delay the start of FMLA leave, even if the employee would prefer that the employer delay the designation of the FMLA leave. 

2. An employer may not designate more than 12 weeks of leave as FMLA leave.  Any employee substituted paid leave counts toward the employee's 12 week FMLA entitlement.  

To read the letter in its entirety, please click HERE

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