“Have you been injured?”  No longer just a query for auto accident victims, plaintiffs must increasingly be able to answer “yes” to that question before bringing suits for violations of statutory rights.

Once upon a time, a technical violation was enough. However, following the Supreme Court’s decision in Spokeo v. Robbins (2016), courts have been increasingly reluctant to permit legal claims, including under employment-related statutes, for technical statutory violations. Instead, as discussed below, plaintiffs must often demonstrate they were actually injured before their lawsuit proceeds.

To  have “standing” to bring a claim, essentially a person must be able to demonstrate that he/she has a personal stake in the outcome of the controversy sufficient to stand before the court. In Spokeo, the Supreme Court detailed the requirement that an injury be “concrete” and “particularized” to establish “standing.” The Court found that, although an injury need not be tangible, it must be “real,” and not “abstract.”

Many federal courts have interpreted this guidance narrowly. For example, in Groshek v. Time Warner Cable (2017), one federal appellate court found that a plaintiff’s alleged technical violation of the Fair Credit Reporting Act requirement that there be a “standalone” clear and conspicuous disclosure that the consumer report in question might be obtained for employment purposes was not sufficient to establish federal standing. Indeed, in Stacy v. Dollar Tree Stores, Inc. (2017), a court in the Southern District of Florida highlighted the nationwide trend in federal courts that “violation of the FCRA’s stand-alone document requirement does not automatically cause a concrete injury.”

State courts have begun to follow suit in their interpretation of state law.  One such example has important implications for employers.  The Illinois Biometric Information Privacy Act (740 ILCS 14/1 et seq.) (“BIPA” or the “Act”) was passed in 2008 to help protect against the rising risk of identity theft. BIPA requires private entities that collect, use or store to biometric identifiers and/or biometric information to adopt publicly available written policies that establish guidelines for the destruction of such information and retention schedules. Additionally, BIPA mandates that such entities obtain subjects’ written consent prior to collecting such biometric identifiers and/or information. This statute implicates many employers who implement timekeeping systems that require employees to scan their finger to clock in and out.

A cause of action under BIPA only accrues if potential plaintiff qualifies as a “person aggrieved” under the Act. Until recently, however, the definition of this term was an open question. However, in Rosenbach v. Six Flags Entertainment Corporation, et. al (2017), an intermediate Illinois appellate court has now determined that a “person aggrieved” by such a violation must allege some actual harm and not just a technical violation of the Act.

In Rosenbach, the plaintiff contended that when her son had purchased a season pass for an amusement park (Great America), Great America collected his biometric identifiers by taking his fingerprint without obtaining consent or disclosing its plan for destruction/retention of such information under BIPA. The court concluded the plaintiff had not alleged she suffered any actual injury – rather, she simply claimed that, “had she known of defendants’ conduct,” she would not have allowed her son to purchase a season pass. Notably, the Rosenbach court relied on another case McCollough v. Smarte Carte, Inc., in which a federal district court also found that a plaintiff must allege a concrete harm (and not mere technical violations) under BIPA in order to state a claim under the statute.

Accordingly, employers should be aware that, if an employee asserts claims based on a technical violation of a statute, there may be a defense that the employee has not suffered a concrete injury.