Former Employees Fail to Establish Viable Class Action Lawsuit

December 1, 2021

Alex Vlaisavich is the firm’s guest blogger.  He is a full-time student at Wheaton College and an intern at Favaro & Gorman, Ltd.

The Seventh Circuit determined that class action claims could not be brought against an employer as the issues at hand were within the bounds of § 301 of the Labor Management Relations Act, 29 U.S.C.S.§ 185 and collective bargaining agreement clauses. Therefore, employees failed to raise an issue regarding a violation of the Illinois Biometric Information Privacy Act (BIPA). This case demonstrates that disputes between employers and employees cannot be resolved through collective bargaining representatives.


Five former employees of Kerry, Inc. filed suit as a class action in the state of Illinois. The plaintiffs sought damage under BIPA requiring private companies to obtain consent prior to using biometric information, in this case fingerprints.The plaintiffs later sought mandatory arbitration, interacting directly with the management of Kerry, Inc. Kerry moved to dismiss the lawsuit, citing § 301 of the Labor Management Relations Act, 29 U.S.C.S.§ 185. The district court ruled in favor of Kerry. The plaintiffs appealed to the Seventh Circuit.


  • The Seventh Circuit held in Miller v. Southwest Airlines Co. that workers cannot bypass their unions in engaging with their employers, citing theRailway Labor Act parallel to § 301. This means that lawsuits cannot be brought forward by individual workers.
  • Disputes regarding collective bargaining agreements must be resolved between unions and employers.
  • In this case, the employer cited that Illinois cannot bypass federal law and authorize direct interactions between employers and employees when resolving disputes.  
  • The retention by employers of biometric data, including fingerprints falls within the framework of collective bargaining agreements, thus must be dealt with between employers and unions.
  • Mandatory arbitration is not allowed under these premises.



  • Further protected by this ruling that BIPA class action lawsuits initiated by employees will not be litigated when the issue of consent is within a collective bargaining agreement.


  • Must resolve BIPA related issues covered in collective bargaining agreements within the context of the union that they are part of.

DISCLAIMER: The above is not and should not be interpreted as legal advice. It is for informational purposes only. You should consult an attorney for legal advice. If you or someone you know are a victim of harassment and are seeking representation, click here to reach out to our firm.

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