Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center for Labor and Employment Law, New York University School of Law.
In Walton v. Roosevelt University, 2023 IL 128338 (Mar. 23, 2023), the Illinois Supreme Court has ruled that the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 (Privacy Act) protections do not apply to union-represented workers because claims under the Privacy Act may require interpretation of their collective bargaining agreement with their employer and are preempted by Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Section 185. The decision, which relies heavily on two Seventh Circuit decisions, see Fernandez v. Kerry, 14 F.4th 644 (2021); Miller v. Southwest Airlines, 926 F.3d 898 (2019), may auger increasing judicial receptivity to broad reading of federal labor law preemption of state worker protection laws.
When employees select a union representative, either by voluntary employer recognition or NLRB certification after victory in a representation election, under the auspices of the National Labor Relations Act of 1935, 29 U.S.C. Section 151 et seq., they have essentially agreed to have the union serve as their exclusive bargaining agent, even if some employees would prefer direct negotiation with their employer. See J.I. Case v. NLRB, 321 U.S. 222 (1944). The reason for this exclusivity rule is to enable the union to collectivize and thereby maximize employee bargaining power in the negotiation of a collective bargaining agreement (CBA). In the entertainment and sports industries, by contrast, unions have agreed to negotiate only minimum terms, permitting above-scale employees to seek better terms via talks with the employer.
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