Legal Briefings

Anthony Simpkins performed carpentry, maintenance and other handiwork for the DuPage, Illinois, Housing Authority under an independent contractor agreement. Over the course of six years, DuPage gave Simpkins lists of job tasks and prioritized the order in which he needed to complete the tasks. Simpkins was paid bi-weekly but never received overtime and employee benefits. Simpkins sued the DHA, claiming it misclassified him as an independent contractor and failed to pay him overtime and disability benefits. The United States Court of Appeals for the Seventh Circuit held a jury could find Simpkins was an employee rather than an independent contractor and reversed summary judgment for DHA. A jury might conclude Simpkins was an employee rather than an independent contractor if Simpkins could prove the DHA directed the manner in which he completed assigned tasks, purchased virtually all the supplies and the job did not require specialized licenses or experience. Finally, a jury might find persuasive that Simpkins’ independent contractor agreement had a termination date, but that date was crossed out and the words “to be determined” were added. Simpkins v. DuPage Housing Authority, No. 17-2685, 2018 WL 3045280 (7th Cir. June 20, 2018).

IMPACT: Even where there is a written independent contractor agreement, the realities of a job may convince a court or jury that an individual was misclassified as an independent contractor. Factors such as the extent of the employer’s control and the provisions of agreements between the parties are all considered when determining whether an individual should have been classified as an employee or independent contractor.

Smith Senior Living required employee Cynthia Dixon to clock in and out of work by scanning her fingerprint through a biometric time clock operated by Kronos, Inc. and stored Dixon’s fingerprint in a database. Smith did not have a policy regarding the collection of employee fingerprints, never informed its employees about the use or retention of the data and routinely disclosed the data to Kronos. Dixon sued Smith and Kronos under the Illinois Biometric Information Privacy Act, which prohibits the unauthorized collection and disclosure of “biometric identifiers,” defined as eye scans, fingerprints, voiceprints and scans of hand and face geometry. Smith and Kronos argued the claim should be dismissed because Dixon suffered no actual harm from their failure to obtain her consent to store and disclose her fingerprint. The court disagreed. The court found that, as a result of the transfer of biometric information between Smith and Kronos, the “alleged violation of the right to privacy in and control over one’s biometric data, despite being an intangible injury, is sufficiently concrete” to maintain the lawsuit. Dixon v. Washington & Jane Smith Community, No. 17 C 8033, 2018 WL 2445292 (N.D. Ill. May 31, 2018).

IMPACT: Texas and Washington also have laws regarding the protection of biometric data. Employers in states that collect biometric information should consult an attorney as to best practices.

Rachel L. Schaller and Daniel Saeedi are attorneys at Taft Stettinius & Hollister LLP. To comment, email