2022 IL 126511

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 126511) 

MARQUITA McDONALD, Appellee, v. SYMPHONY 

BRONZEVILLE PARK, LLC, et al. (Symphony Bronzeville Park, LLC, Appellant). 

Opinion filed February 3, 2022.

JUSTICE OVERSTREET delivered the judgment of the court, with opinion. 

Chief Justice Anne M. Burke and Justices Garman, Theis, Neville, and Carter

concurred in the judgment and opinion. 

Justice Michael J. Burke specially concurred, with opinion. 

OPINION

¶ 1 The instant action involves an interlocutory appeal pursuant to Illinois Supreme 

Court Rule 308 (eff. July 1, 2017), wherein we consider the following certified 

question: “Do[ ] the exclusivity provisions of the Workers’ Compensation Act 

[(Compensation Act) (820 ILCS 305/1 et seq. (West 2016))] bar a claim for 
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statutory damages under [the Biometric Information Privacy Act (Privacy Act) (740 

ILCS 14/1 et seq. (West 2016))] where an employer is alleged to have violated an 

employee’s statutory privacy rights under [the Privacy Act]?” The appellate court 

allowed defendant’s Rule 308 appeal (Ill. S. Ct. R. 308 (eff. July 1, 2017)) and 

answered the certified question in the negative. 2020 IL App (1st) 192398. This 

court allowed Bronzeville’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Oct. 

1, 2020)), and for the following reasons, also answers the certified question in the 

negative.

¶ 2 I. BACKGROUND

¶ 3 On August 17, 2017, Marquita McDonald filed a putative class action against 

the defendant, Symphony Bronzeville Park, LLC (Bronzeville), alleging that 

Bronzeville’s collection, use, and storage of McDonald’s and the putative class’s 

sensitive biometric data pursuant to a fingerprint timekeeping system violates the 

Privacy Act.1 In April 2019, McDonald filed a first-amended complaint, wherein 

she, inter alia, added as defendants two related entities, Symcare Healthcare LLC 

and Symcare HMG LLC; withdrew a common-law negligence claim; and removed 

allegations that she suffered mental anguish as a result of the Privacy Act violations, 

stating that the allegations of mental anguish were “unnecessary to her recovery on 

her [Privacy Act] claim.” 

¶ 4 According to the amended complaint, Symcare Healthcare LLC owns a 

network of post-acute-care facilities, including Bronzeville’s location, which 

provide patients with a variety of services, from rehabilitative to palliative care, 

typically after they have undergone major medical procedures. Pursuant to the 

allegations specific to her, McDonald alleged that she was employed by Bronzeville 

from December 2016 to February 2017 and that Bronzeville utilized a biometric 

information system, which required her to scan her fingerprint, as a means of 

authenticating employees and tracking their time. McDonald alleged that she was 

never provided with nor signed a release consenting to storage of her biometric 

1

Plaintiff also named Symphony Healthcare LLC as a defendant in her original complaint, but 

she subsequently dismissed her claim against Symphony Healthcare LLC.
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information and had never been informed of the purposes or length of time for 

which her biometric information was being stored. 

¶ 5 Accordingly, McDonald alleged that Bronzeville and the other defendants had 

violated—and continued to violate—various statutory requirements of the Privacy 

Act (740 ILCS 14/1 et seq. (West 2016)). Specifically, McDonald and the putative 

class alleged that defendants negligently failed to obtain written releases from them 

before collecting, using, and storing their biometric identifiers and biometric 

information (id. § 15(b)(3)); negligently failed to inform them in writing that their 

biometric identifiers and biometric information were being collected and stored (id.

§ 15(b)(1)); negligently failed to inform them in writing of the specific purpose and 

length of time for which their biometric identifiers or biometric information was 

being collected, stored, and used (id. § 15(b)(2)); and negligently failed to publicly 

provide a retention schedule or guideline for permanently destroying the biometric 

identifiers and biometric information (id. § 15(a)). 

¶ 6 McDonald and the putative class alleged that, by negligently collecting, storing, 

and using their biometric identifiers and biometric information, Bronzeville 

violated their rights to privacy in their biometric identifiers or biometric 

information as set forth in the Privacy Act. 740 ILCS 14/1 et seq. (West 2016). 

McDonald and the putative class sought (1) injunctive and equitable relief to 

protect their interests by requiring Bronzeville to comply with the Privacy Act’s 

requirements, (2) liquidated damages of $1000 per violation for each negligent 

violation of section 20(1) of the Privacy Act (id § 20(1)), and (3) reasonable 

attorney fees and costs and other litigation expenses pursuant to section 20(3) of 

the Privacy Act (id. § 20(3)). 

¶ 7 Bronzeville filed motions to dismiss McDonald’s class action complaint 

pursuant to sections 2-615 and 2-619(a)(9) of the Code of Civil Procedure. 735 

ILCS 5/2-615, 2-619(a)(9) (West 2016). Bronzeville asserted, inter alia, that 

McDonald and the putative class alleged claims that were barred by the exclusive 

remedy provisions of the Compensation Act (820 ILCS 305/1 et seq. (West 2016)). 

Bronzeville argued that the Compensation Act is the exclusive remedy for 

accidental injuries transpiring in the workplace and that an employee has no 

common-law or statutory right to recover civil damages from an employer for 

injuries incurred in the course of her employment. 
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¶ 8 On June 17, 2019, the Cook County circuit court denied Bronzeville’s motions 

to dismiss. The circuit court rejected Bronzeville’s argument that the Compensation 

Act preempted any claims by an employee against an employer under the Privacy 

Act. The circuit court held that McDonald’s injury involved the loss of the ability 

to maintain her privacy rights, which was neither a psychological nor physical 

injury and not compensable under the Compensation Act. The circuit court further 

held that the Privacy Act specifically defined “written release” in the employment 

context and, thus, the legislature intended for the Privacy Act to apply to violations 

by employers in the workplace. Accordingly, the circuit court allowed McDonald’s 

claim to proceed in the circuit court. 740 ILCS 14/10 (West 2016) (“ ‘Written 

release’ means informed written consent or, in the context of employment, a release 

executed by an employee as a condition of employment.”). 

¶ 9 On July 18, 2019, Bronzeville filed a motion for reconsideration of the circuit 

court’s conclusion or, alternatively, a motion to certify questions for immediate 

appeal pursuant to Illinois Supreme Court Rule 308(a) (eff. July 1, 2017). 

Bronzeville argued, inter alia, that the Compensation Act and the Privacy Act can 

both reasonably be given effect in an employment context. Bronzeville explained 

that when an employee demonstrates that injunctive or declaratory relief is 

appropriate, then that employee may obtain redress under the Privacy Act, but when 

the employee seeks a statutory right to damages under the Privacy Act, that claim 

is preempted by the exclusive remedies afforded under the Compensation Act. 

¶ 10 In a written order entered on October 29, 2019, the circuit court denied 

Bronzeville’s motion to reconsider but certified the following question for 

interlocutory appeal: “Do[ ] the exclusivity provisions of the Workers’ 

Compensation Act bar a claim for statutory damages under [the Privacy Act] where 

an employer is alleged to have violated an employee’s statutory privacy rights 

under [the Privacy Act]?” The circuit court also stayed the proceedings before it, 

pending resolution of the certified question in the appellate court. 

¶ 11 The appellate court granted Bronzeville’s request for leave to appeal in 

December 2019. 2020 IL App (1st) 192398, ¶ 8. Citing this court’s decision in Folta 

v. Ferro Engineering, 2015 IL 118070, the appellate court held that, to determine 

whether an employer’s liability is governed exclusively by the provisions of the 

Compensation Act, the court must consider whether “ ‘the injury is the type of 
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work-related injury within the purview of the [Compensation Act].’ ” 2020 IL App 

(1st) 192398, ¶ 21 (quoting Folta, 2015 IL 118070, ¶ 36). 

¶ 12 Recognizing that an employee can escape the exclusivity provisions of the 

Compensation Act if she establishes that her injury is not “compensable” under the 

Compensation Act, the appellate court nevertheless noted the dearth of caselaw 

applying a compensability standard to the question of whether the Compensation 

Act preempts a claim under the Privacy Act. Id. ¶ 22. The appellate court agreed 

with the observation from the federal court’s decision in Treadwell v. Power 

Solutions International, Inc., 427 F. Supp. 3d 984 (N.D. Ill. 2019), that the Folta

court made clear that the inquiry regarding whether an injury is compensable “ ‘is 

broader than just whether an injury arises out of and in the course of employment 

and does, to some extent, consider the character of the injury.’ ” 2020 IL App (1st) 

192398, ¶ 22 (quoting Treadwell, 427 F. Supp. 3d at 992). 

¶ 13 The appellate court concluded that 

“a claim by an employee against an employer for liquidated damages under the 

Privacy Act—available without any further compensable actual damages being 

alleged or sustained and designed in part to have a preventative and deterrent 

effect—[does not] represent[ ] the type of injury that categorically fits within 

the purview of the Compensation Act, which is a remedial statute designed to 

provide financial protection for workers that have sustained an actual injury.” 

Id. ¶ 27. 

Accordingly, the appellate court “conclude[d] that the exclusivity provisions of the 

Compensation Act do not bar a claim for statutory, liquidated damages, where an 

employer is alleged to have violated an employee’s statutory privacy rights under 

the Privacy Act, as such a claim is simply not compensable under the Compensation 

Act.” Id. Accordingly, the appellate court answered the certified question in the 

negative and remanded the matter to the circuit court. Id. ¶ 29. 

¶ 14 On January 27, 2021, this court allowed Bronzeville’s petition for leave to 

appeal. Ill. S. Ct. R. 315 (eff. Oct. 1, 2020). We also allowed Mercyhealth System 

Corporation; PDB Worldwide, Inc.; A. Lava & Son Company; Kilcoy Pastoral 

Company Trading USA; Yaskawa America, Inc.; Top Die Casting Company; 

United Scrap Metal, Inc.; Bella Elevator, LLC; Chronister Oil Company; UCAL 
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Systems, Inc.; Cross Road Centers Illinois, LLC; Trippe Manufacturing Company; 

Black Horse Carriers, Inc.; and Oxford Hotels and Resorts (collectively referred to 

as the Consortium of Affected Illinois Employers) and the Restaurant Law Center 

leave to file briefs as amici curiae in support of Bronzeville’s position. Ill. S. Ct. R. 

345 (eff. Sept. 20, 2010). We allowed the Workers’ Compensation Lawyers 

Association and the Illinois Trial Lawyers Association leave to file briefs as amici 

curiae in support of McDonald’s position. Id. We also allowed the National 

Employment Lawyers Association, Illinois Chapter, and the National Employment 

Law Project leave to file a joint brief as amici curiae in support of McDonald’s 

position. Id.

¶ 15 II. ANALYSIS

¶ 16 Illinois Supreme Court Rule 308 (eff. July 1, 2017) provides in relevant part:

“When the trial court, in making an interlocutory order not otherwise 

appealable, finds that the order involves a question of law as to which there is 

substantial ground for difference of opinion and that an immediate appeal from 

the order may materially advance the ultimate termination of the litigation, the 

court shall so state in writing, identifying the question of law involved. Such a 

statement may be made at the time of the entry of the order or thereafter on the 

court’s own motion or on motion of any party. The [a]ppellate [c]ourt may 

thereupon in its discretion allow an appeal from the order.” 

“By definition, certified questions are questions of law subject to de novo review.” 

Rozsavolgyi v. City of Aurora, 2017 IL 121048, ¶ 21. 

¶ 17 The certified question in this case asks us to construe the language of the 

Compensation Act and the Privacy Act to determine whether the Compensation 

Act’s exclusivity provisions bar an employee’s claim filed in the circuit court for 

statutory damages under the Privacy Act. “Our primary objective when construing 

a statute is to ascertain and give effect to the intent of the legislature.” Eighner v. 

Tiernan, 2021 IL 126101, ¶ 19. “The most reliable indicator of legislative intent is 

the plain and ordinary meaning of the statutory language.” Id. “When construing 

statutory language, we view [a] statute in its entirety, construing words and phrases 

in light of other relevant statutory provisions and not in isolation.” Id.; see also 
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Vaught v. Industrial Comm’n, 52 Ill. 2d 158, 165 (1972) (“In construing the 

provisions of the Workmen’s Compensation Act, all portions thereof must be read 

as a whole and in such manner as to give to them the practical and liberal 

interpretation intended by the legislature.”). 

¶ 18 “When the statutory language is plain and unambiguous, we may not depart 

from the law’s terms by reading into it exceptions, limitations, or conditions the 

legislature did not express, nor may we add provisions not found in the law.” 

Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, ¶ 24. Nevertheless, 

in construing a statute, the court may consider the reason for the law, the problems 

sought to be remedied, the purposes to be achieved, and the consequences of 

construing the statute one way or another. Hubble v. Bi-State Development Agency 

of the Illinois-Missouri Metropolitan District, 238 Ill. 2d 262, 268 (2010). 

¶ 19 Privacy Act

¶ 20 The Privacy Act was enacted in 2008 to help regulate “the collection, use, 

safeguarding, handling, storage, retention, and destruction of biometric identifiers 

and information.” 740 ILCS 14/5(g) (West 2016). The Privacy Act defines 

“[b]iometric identifier” to mean “a retina or iris scan, fingerprint, voiceprint, or 

scan of hand or face geometry.” Id. § 10. “Biometric information” means “any 

information, regardless of how it is captured, converted, stored, or shared, based on 

an individual’s biometric identifier used to identify an individual.” Id. 

¶ 21 The Privacy Act imposes restrictions on how private entities like Bronzeville

collect, retain, use, disclose, and destroy “biometric identifiers” and “biometric 

information.” 740 ILCS 14/1 et seq. (West 2016). Relevant herein, the Privacy Act 

mandates that, before obtaining an individual’s fingerprint, a private entity must 

inform the individual in writing regarding the fact that her biometric identifier or 

biometric information is being collected or stored; the specific purpose of collecting 

or using the biometric identifier or biometric information; and the length of term 

for which the biometric identifier or biometric information will be collected, stored, 

and used. Id. § 15(b). The entity must also obtain a signed “written release” from 

an individual before collecting her biometric identifier or biometric information. 

Id. § 15(b)(3). In the employment context, the Privacy Act specifically defines 
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“written release” as “a release executed by an employee as a condition of 

employment.” Id. § 10. 

¶ 22 The Privacy Act also requires a private entity to obtain consent before 

disclosing or disseminating an individual’s biometric identifier to a third party. Id.

§ 15(d) (no private entity may disclose biometric identifier or biometric 

information unless subject consents to disclosure, disclosure completes financial 

transaction requested by subject, disclosure is required by state or federal law or 

municipal ordinance, or disclosure is required pursuant to valid warrant or 

subpoena). Moreover, a private entity in possession of biometric identifiers or 

biometric information must make publicly available a written “retention schedule 

and guidelines” it uses for permanently destroying biometric identifiers and 

biometric information within a certain time period. Id. § 15(a). 

¶ 23 “These provisions are enforceable through private rights of action.” Rosenbach, 

2019 IL 123186, ¶ 21. Specifically, section 20 of the Privacy Act provides that 

“[a]ny person aggrieved by a violation of this Act shall have a right of action in a 

[s]tate circuit court or as a supplemental claim in federal district court against an 

offending party.” 740 ILCS 14/20 (West 2016). Section 20 of the Privacy Act 

further provides: 

“[a] prevailing party may recover for each violation: 

(1) against a private entity that negligently violates a provision of this 

Act, liquidated damages of $1,000 or actual damages, whichever is greater;

(2) against a private entity that intentionally or recklessly violates a 

provision of this Act, liquidated damages of $5,000 or actual damages, 

whichever is greater;

(3) reasonable attorneys’ fees and costs, including expert witness fees 

and other litigation expenses; and 

(4) other relief, including an injunction, as the [s]tate or federal court 

may deem appropriate.” Id. 

¶ 24 “Through the [Privacy] Act, our General Assembly has codified that individuals 

possess a right to privacy in and control over their biometric identifiers and 
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biometric information.” Rosenbach, 2019 IL 123186, ¶ 33. “Accordingly, when a 

private entity fails to comply with one of section 15’s requirements, that violation 

constitutes an invasion, impairment, or denial of the statutory rights of any person 

or customer whose biometric identifier or biometric information is subject to the 

breach.” Id. “The violation, in itself, is sufficient to support the individual’s or 

customer’s statutory cause of action.” Id. “Other than the private right of action 

authorized in section 20 of the [Privacy] Act, no other enforcement mechanism is 

available.” Id. ¶ 37. 

¶ 25 McDonald’s class-action complaint alleges that Bronzeville and the other 

defendants violated the provisions of section 15 of the Privacy Act when they 

collected employees’ fingerprints without following the statutorily prescribed 

protocol. McDonald seeks redress on her behalf and on behalf of a class of similarly 

situated individuals based on the defendants’ failure to comply with the statute’s 

requirements. 

¶ 26 Bronzeville argues that, despite the plain language of section 20 of the Privacy 

Act providing “a right of action in a [s]tate circuit court,” the Compensation Act 

precludes McDonald’s class action in the circuit court because the alleged injury 

occurred in the course of her employment and must therefore be adjudicated before 

the Illinois Workers’ Compensation Commission pursuant to the Compensation 

Act. See 820 ILCS 305/1(d) (West 2016) (the Compensation Act provides financial 

protection to workers for “accidental injuries arising out of and in the course of the 

employment”); id. § 18 (questions arising under Compensation Act, if not settled 

by agreement of the parties, shall be determined by the Workers’ Compensation 

Commission). We agree with Bronzeville that this court has previously applied the 

plain language of the exclusivity provisions of the Compensation Act to preclude 

an employee’s statutory cause of action against his employer in the circuit court. 

See Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 13 Ill. 2d 460, 463 

(1958) (supreme court held that workmen’s compensation statute barred 

employee’s statutory action pursuant to the scaffold statute (Ill Rev. Stat. 1957, ch. 

48, ¶¶ 60 to 69) against his employer in the circuit court for injuries he sustained 

when he fell from a ladder while climbing to a scaffold in the course of his 

employment). However, for reasons hereinafter defined, we find that the physical 

injury that the plaintiff in Gannon suffered as a result of falling from a ladder in the 

course of, and arising from, his employment is distinguishable from the injury 
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McDonald alleges here on behalf of herself and the class.

¶ 27 Compensation Act 

¶ 28 The legislature enacted the Compensation Act “to abrogate the common law 

rights and liabilities which previously governed an injured employee’s ability to 

recover against his employer.” Sharp v. Gallagher, 95 Ill. 2d 322, 326 (1983). The 

Compensation Act “established a new ‘system of liability without fault, designed 

to distribute the cost of industrial injuries without regard to common-law doctrines 

of negligence, contributory negligence, assumption of risk, and the like.’ ” Id.

(quoting Gannon, 13 Ill. 2d at 463). “ ‘Balanced against the imposition of no-fault 

liability upon the employer are statutory limitations upon the amount of the 

employee’s recovery, depending upon the character and the extent of the injury.’ ” 

Id. (quoting McCormick v. Caterpillar Tractor Co., 85 Ill. 2d 352, 356 (1981)); see 

also Folta, 2015 IL 118070, ¶ 12 (“In exchange for a system of no-fault liability 

upon the employer, the employee is subject to statutory limitations on recovery for 

injuries and occupational diseases arising out of and in the course of 

employment.”). “This trade-off between employer and employee promoted the 

fundamental purpose of the [Compensation] Act, which was to afford protection to 

employees by providing them with prompt and equitable compensation” for injuries 

or death suffered in the course of employment. Kelsay v. Motorola, Inc., 74 Ill. 2d 

172, 180-81 (1978); see also Pathfinder Co. v. Industrial Comm’n, 62 Ill. 2d 556, 

563 (1976) (“The [Compensation] Act is remedial in nature in that it is intended to 

provide financial protection for the injured worker.”); Collier v. Wagner Castings 

Co., 81 Ill. 2d 229, 241 (1980) (“[T]he basic purpose of workmen’s compensation 

[is] to place the cost of industrial accidents upon the industry.”). 

¶ 29 It is a well-settled principle that the Compensation Act is a remedial statute and 

should be liberally construed to effectuate its main purpose—to provide financial 

protection for injured workers until they can return to the workforce. Interstate 

Scaffolding, Inc. v. Illinois Workers’ Compensation Comm’n, 236 Ill. 2d 132, 146, 

149 (2010). Damages are awarded according to a predetermined fee schedule 

created by the Illinois Workers’ Compensation Commission, eliminating the 

variability in the value of each judgment. 820 ILCS 305/8.2 (West 2016). 

“[W]orker’s compensation is a statutory remedy and the Workers’ Compensation 
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Commission, as an administrative agency, is without general or common law 

powers.” Interstate Scaffolding, Inc., 236 Ill. 2d at 145. “[T]he Commission is 

limited to those powers granted by the legislature.” Id. “Any action taken by the 

Commission must be specifically authorized by statute.” Id. 

¶ 30 “ ‘As part of this “balancing,” the [Compensation] Act further provides that the 

statutory remedies under it shall serve as the employee’s exclusive remedy if he 

sustains a compensable injury.’ ” Sharp, 95 Ill. 2d at 326 (quoting McCormick, 85 

Ill. 2d at 356). “[T]he [Compensation] Act imposes liability without fault upon the 

employer and, in return, prohibits common law suits by employees against the 

employer.” Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462 (1990). The 

Compensation Act contains exclusive remedy provisions as 

“ ‘part of the quid pro quo in which the sacrifices and gains of employees and 

employers are to some extent put in balance, for, while the employer assumes a 

new liability without fault, he is relieved of the prospect of large damage 

verdicts.’ (2A A. Larson, Law of Workmen’s Compensation § 65.11 (1988).)” 

Id.

See also Moushon v. National Garages, Inc., 9 Ill. 2d 407, 412 (1956). In effect, 

the employer relinquishes certain defenses, and the employee relinquishes certain 

recoverable elements of damage of a common-law negligence action, a balance that

we have determined is a reasonable exercise of the legislature’s police power for 

the promotion of the general welfare. Moushon, 9 Ill. 2d at 412. 

¶ 31 Sections 5(a) and 11 of the Compensation Act constitute the exclusive remedy 

provisions. Section 5(a) of the Compensation Act provides, in relevant part: 

“No common law or statutory right to recover damages from the employer *** 

for injury or death sustained by any employee while engaged in the line of his 

duty as such employee, other than the compensation herein provided, is 

available to any employee who is covered by the provisions of this Act, to any 

one wholly or partially dependent upon him, the legal representatives of his 

estate, or any one otherwise entitled to recover damages for such injury.” 820 

ILCS 305/5(a) (West 2016). 

Similarly, section 11 of the Compensation Act provides: 
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“The compensation herein provided, together with the provisions of this Act, 

shall be the measure of the responsibility of any employer engaged in any of 

the enterprises or businesses enumerated in Section 3 of this Act, or of any 

employer who is not engaged in any such enterprises or businesses, but who has 

elected to provide and pay compensation for accidental injuries sustained by 

any employee arising out of and in the course of the employment according to 

the provisions of this Act, and whose election to continue under this Act, has 

not been nullified by any action of his employees as provided for in this Act.” 

Id. § 11. 

¶ 32 Considering these two “exclusivity provisions,” this court “has indicated that 

the [Compensation] Act generally provides the exclusive means by which an 

employee can recover against an employer for a work-related injury.” Folta, 2015 

IL 118070, ¶ 14. 

“However, an employee can escape the exclusivity provisions of [sections 5(a) 

and 11 of] the [Compensation] Act if the employee establishes that the injury 

(1) was not accidental; (2) did not arise from his employment; (3) was not 

received during the course of employment; or (4) was not compensable under 

the [Compensation] Act.” Id.

At issue in this case is the fourth exception to the Compensation Act’s exclusive 

remedy provision, i.e., whether McDonald’s and the putative class’s alleged 

injuries are “compensable” under the Compensation Act. 

¶ 33 Bronzeville argues that the exclusivity provisions are broadly worded and 

require exclusive resort to the Compensation Act’s remedy for any injury arising 

out of and in the course of employment. Bronzeville thus argues that McDonald’s 

claim cannot proceed in the circuit court because it involves an injury (Rosenbach, 

2019 IL 123186, ¶ 34 (Privacy Act violation injury is “real and significant”)) that 

occurred in the line of duty and arose out of and in the course of employment in the 

workplace. As such, Bronzeville essentially argues that this fourth exception is a 

restatement of the second and third exceptions. 

¶ 34 McDonald, on the other hand, interprets the fourth exception to mean that only 

physical or psychological injuries are compensable under the Compensation Act. 

McDonald and the amici supporting McDonald’s position note that, if the General 
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Assembly had intended for Privacy Act claims to fall under the provisions of the 

Compensation Act, it would have so provided. Instead, it did not because the 

Workers’ Compensation Commission is not the appropriate forum to adjudicate 

such claims, given the privacy inquiries are foreign to the workers’ compensation 

system; the system has limited discovery provisions and a lack of motion practice, 

which would preclude prompt and efficient handling of such claims; and the 

primary purpose of the Compensation Act would then not be given its full effect. 

¶ 35 Bronzeville counters by contending that McDonald has failed to demonstrate a 

principled basis for distinguishing between the real and significant Privacy Act 

injury that she purportedly suffered during the course of and arising from her 

employment and those injuries the court has previously deemed compensable under 

the Compensation Act. See Meerbrey, 139 Ill. 2d at 469 (holding that the 

Compensation Act’s exclusivity provisions precluded employee, who suffered 

emotional distress as a consequence of false imprisonment, false arrest, or 

malicious prosecution in the workplace, from suing for civil damages against his 

former employer); Collier, 81 Ill. 2d at 241 (holding that the Compensation Act’s 

exclusivity provisions precluded employee, who had collected workers’ 

compensation settlement, from suing for civil damages for emotional distress 

against his employer who failed to provide medical assistance after he suffered a 

heart attack); Pathfinder, 62 Ill. 2d at 564-65 (holding that employee, who suffered 

a sudden, severe emotional shock and psychological disability after assisting 

coemployee whose hand was severed in a machine, could recover under the 

Compensation Act even though no physical trauma or injury was sustained). 

¶ 36 In Folta, this court acknowledged that it “has had limited opportunity to address 

what we originally meant in Collier when we used the phrase ‘not compensable’ to 

carve out a category of injuries for which the exclusive remedy provision[s] would 

not be applicable.” 2015 IL 118070, ¶ 17. This court noted that its jurisprudence on 

the matter was largely contained in a handful of decisions. Id. ¶¶ 20-23 (citing 

Meerbrey, 139 Ill. 2d at 467-68, Collier, 81 Ill. 2d at 237, and Pathfinder, 62 Ill. 2d 

at 563). 

¶ 37 In Folta, the plaintiff was diagnosed with mesothelioma and sued his former 

employer after allegedly being exposed to asbestos on the job. Id. ¶ 3. His employer 

moved to dismiss the complaint, arguing that the Workers’ Occupational Diseases 
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Act’s (820 ILCS 310/1 et seq. (West 2010)) exclusivity provisions barred plaintiff’s 

claim.2 Folta, 2015 IL 118070, ¶ 4. The plaintiff responded that the exclusivity 

provisions did not bar his civil action because he could not recover under the 

Workers’ Occupational Diseases Act in that he had filed his claim beyond the 25-

year repose period and, thus, his claim was literally “not compensable” under that 

act. Id.

¶ 38 The circuit court agreed with the employer and granted the motion to dismiss. 

Id. ¶ 6. The appellate court reversed and remanded, finding that the plaintiff’s literal 

inability to recover damages under the Workers’ Occupational Diseases Act placed 

his case within the exclusivity exception for “noncompensable injuries” and 

therefore his tort suit against his employer was not barred by the exclusivity 

provisions. Id. ¶ 7. However, this court reversed the appellate court’s judgment, 

concluding that the exclusivity provisions barred the employee’s cause of action 

against his employer to recover civil damages for a disease that arose out of and in 

the course of employment even though no compensation was available under the 

acts due to the statutory time limits on the employer’s liability. Id. ¶¶ 10, 52.3

¶ 39 This court in Folta held that the question was not whether an injury was literally 

compensable, i.e., whether the employee could literally receive compensation for 

injuries under the acts. Id. ¶ 23. The court held that “whether an injury is 

compensable is related to whether the type of injury categorically fits within the 

purview of the” workers’ compensation acts. Id. Because the Workers’ 

2

The court in Folta addressed whether the employee’s negligence action against his employer 

was barred by the exclusive remedy provisions of the Workers’ Occupational Diseases Act (820 

ILCS 310/1 et seq. (West 2010)), an act not at issue here. Nevertheless, the court in Folta relied on 

precedent interpreting the Compensation Act because the corresponding exclusivity provisions in 

the two acts “have been viewed analogously for purposes of judicial construction.” 2015 IL 118070, 

¶ 13. The court held that “cases that have construed the exclusivity provisions in the context of the 

*** Compensation Act would also apply in the context of the Workers’ Occupational Disease Act.” 

Id. The converse would also apply.

3

Sections 5(a) and 11 of the Compensation Act were subsequently amended by Public Act 101-

6, § 5 (eff. May 17, 2019). The amendment added section 1.2, providing that subsection (a) of 

section 5 and section 11 do not apply to any injury or death sustained by an employee as to which 

the recovery of compensation benefits under the Compensation Act would be precluded due to the 

operation of any period of repose or repose provision. See 820 ILCS 305/1.2 (West 2020). The 

amendment provides that, as to any such injury or death, the employee or the employee’s heirs have 

the nonwaivable right to bring a civil action at law against any employer. Id. The subject of this 

amendment is specific to the facts in Folta that are not at issue in this appeal.
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Occupational Diseases Act specifically addressed diseases caused by asbestos 

exposure and employees had recovered for disabilities or death arising from 

workplace asbestos exposure, including mesothelioma, this court concluded, “it is 

evident that the legislature intended that occupational diseases arising from 

workplace asbestos exposure are the type of injury contemplated to be within the 

scope of” the Workers’ Occupational Diseases Act. Id. ¶ 25. 

¶ 40 Accordingly, the exclusivity challenge here depends upon the type of injury 

sustained. Id.; see also 9 Lex K. Larson, Larson’s Workers’ Compensation Law 

§ 104.05[4] (Matthew Bender, rev. ed. 2021). Whether the exclusivity provision 

bars an employee’s civil claims depends upon the nature of the injury because the 

exclusivity provisions, by their express language, only apply if the injury is one that 

is covered by the Compensation Act. 820 ILCS 305/5(a) (West 2016) (no right to 

recover damages, other than the compensation herein provided, is available to any 

employee who is covered by the Compensation Act’s provisions); Id. § 11 (the 

compensation herein provided, together with the provisions of this Compensation 

Act, shall be the measure of the employer’s responsibility). 

¶ 41 The Compensation Act’s main purpose is to provide financial protection for 

injured workers until they can return to the workforce. Interstate Scaffolding, Inc., 

236 Ill. 2d at 146. The Compensation Act sets forth a compensation schedule 

corresponding to death, to injuries to specific body parts, and to inability to work. 

820 ILCS 305/7, 8 (West 2016). The Compensation Act also requires companies to 

report “all accidental deaths, injuries and illnesses arising out of and in the course 

of the employment” to the Workers’ Compensation Commission. Id. § 6(b). These 

are injuries that affect an employee’s capacity to perform employment-related 

duties, which is the type of injury for which the workers’ compensation scheme 

was created. 

¶ 42 These provisions are consistent with the observation in Pathfinder that the test 

for whether an employee suffers a compensable injury under the Compensation Act 

is “ ‘whether there was a harmful change in the human organism—not just its bones 

and muscles, but its brain and nerves as well.’ ” Pathfinder, 62 Ill. 2d at 565 

(quoting Arthur Larson, Mental and Nervous Injury in Workmen’s Compensation, 

23 Vand. L. Rev. 1243, 1260 (1970)); see also Laffoon v. Bell & Zoller Coal Co., 

65 Ill. 2d 437, 446 (1976) (“[T]he purpose of the Workmen’s Compensation Act is 
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to afford employees financial protection when their earning power is temporarily 

diminished or terminated due to employment injures.”). These are the injuries for 

which the Workers’ Compensation Commission is tasked with deciding 

compensation pursuant to the Compensation Act. 

¶ 43 The personal and societal injuries caused by violating the Privacy Act’s 

prophylactic requirements are different in nature and scope from the physical and 

psychological work injuries that are compensable under the Compensation Act. The 

Privacy Act involves prophylactic measures to prevent compromise of an 

individual’s biometrics. Rosenbach, 2019 IL 123186, ¶ 36. McDonald’s claim 

seeks redress for the lost opportunity “to say no by withholding consent.” Id. ¶ 34. 

McDonald alleges that Bronzeville has violated her and the class’s right to maintain 

their biometric privacy. See id. 

¶ 44 As such, the circuit court correctly reasoned that McDonald’s loss of the ability 

to maintain her privacy rights was not a psychological or physical injury that is 

compensable under the Compensation Act. Likewise, the appellate court correctly 

held that a Privacy Act violation is not the type of injury that categorically fits 

within the purview of the Compensation Act and is thus not compensable under the 

Compensation Act. See generally Toothman v. Hardee’s Food Systems, Inc., 304 

Ill. App. 3d 521, 533 (1999) (in order for injuries to be compensable under the 

Compensation Act, there must be some “demonstrable medical evidence of 

injury”); Marino v. Arandell Corp., 1 F. Supp. 2d 947, 951 (E.D. Wis. 1998) 

(“workers’ compensation acts *** were not designed to regulate or deter employer 

conduct, but to financially compensate injured employees and, specifically, to 

redress impaired earning capacity”). Accordingly, McDonald’s Privacy Act claim 

for liquidated damages is not categorically within the purview of the Compensation 

Act.

¶ 45 Moreover, the plain language of the Privacy Act supports a conclusion that the 

legislature did not intend that the Privacy Act would be preempted by the 

Compensation Act. As a matter of legislative intent, later-enacted statutes control 

over earlier statutes, and more-specific statutes control over general acts. See 

People ex rel. Madigan v. Burge, 2014 IL 115635, ¶ 31 (in construing two 

conflicting statutes that cover the same subject, the specific governs the general and 

the more recently enacted statute should generally be given precedence). The 
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Privacy Act, which postdates the Compensation Act, defines the precollection 

“written release” required by the Compensation Act to include “a release executed 

by an employee as a condition of employment.” 740 ILCS 14/10 (West 2016). 

Thus, the legislature was aware that Privacy Act claims could arise in the 

employment context, yet it treated them identically to nonemployee claims except 

as to permissible methods of obtaining consent. Therefore, the text of the Privacy 

Act itself, which mentions its application in the employment context, is further 

evidence that the legislature did not intend for Privacy Act claims to be presented 

to the Workers’ Compensation Commission. 

¶ 46 Bronzeville argues that such a construction means that Illinois employers would 

have greater protection against significant employee workplace injuries, whether 

physical, emotional, or mental, but no protection from workplace injuries stemming 

from technical violations of the Privacy Act. Bronzeville argues that, when 

workplace injuries can be cleverly characterized to evade the broad sweep of the 

exclusivity provisions, the proverbial litigation floodgates will open wide and the 

robust protections provided to Illinois employers will quickly erode. 

¶ 47 Amici supporting Bronzeville’s position likewise suggest that our decision 

stands to expose employers to potentially devastating class actions that can result 

in financial ruin. They suggest that allowing Privacy Act claims to proceed in court 

will expose employers in Illinois to a patchwork of varying results, especially given 

the rapidly evolving nature of Privacy Act case law. 

¶ 48 We are cognizant of the substantial consequences the legislature intended as a 

result of Privacy Act violations. Pursuant to the Privacy Act, the General Assembly 

has adopted a strategy to limit the risks posed by the growing use of biometrics by 

businesses and the difficulty in providing meaningful recourse once a person’s 

biometric identifiers or biometric information has been compromised. Rosenbach, 

2019 IL 123186, ¶ 35; see also 740 ILCS 14/5(c) (West 2016) (once biometrics are 

compromised, the individual has no recourse, is at heightened risk for identity theft, 

and is likely to withdraw from biometric-facilitated transactions). The General 

Assembly has tried to head off such problems before they occur by imposing 

safeguards to ensure that the individuals’ privacy rights in their biometric identifiers 

and biometric information are properly protected before they can be compromised 

and by subjecting private entities who fail to follow the statute’s requirements to 
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substantial potential liability (740 ILCS 14/20 (West 2016)) whether or not actual 

damages, beyond violation of the law’s provisions, can be shown. Rosenbach, 2019 

123186, ¶ 36. “It is clear that the legislature intended for this provision to have 

substantial force.” Id. ¶ 37. 

“When private entities face liability for failure to comply with the law’s 

requirements without requiring affected individuals or customers to show some 

injury beyond violation of their statutory rights, those entities have the strongest 

possible incentive to conform to the law and prevent problems before they occur 

and cannot be undone.” Id.

¶ 49 Ultimately, however, whether a different balance should be struck under the 

Privacy Act given the category of injury is a question more appropriately addressed 

to the legislature. See Folta, 2015 IL 118070, ¶ 43. “It is the province of the 

legislature to draw the appropriate balance.” Id. “It is not our role to inject a 

compromise, but, rather, to interpret the acts as written.” Id.; see also Roselle Police 

Pension Board v. Village of Roselle, 232 Ill. 2d 546, 557 (2009) (the supreme court 

does not “sit as a superlegislature to weigh the wisdom of legislation [or] to decide 

whether the policy which it expresses offends the public welfare” (internal 

quotation marks omitted)). 

¶ 50 In sum, we conclude that McDonald may pursue her Privacy Act claims on her 

behalf and on behalf of the putative class in an action in the circuit court, rather

than through a claim before the Workers’ Compensation Commission, because 

McDonald’s and the putative class’s alleged injury is not one that “categorically 

fits within the purview of the [Compensation] Act.” Folta, 2015 IL 118070, ¶ 23. 

Because the injury alleged is not the type of injury compensable in a workers’ 

compensation proceeding, McDonald’s lawsuit is not preempted by the exclusiveremedy provisions of the Compensation Act. Accordingly, we answer the certified 

question in the negative. 

¶ 51 III. CONCLUSION

¶ 52 For the foregoing reasons, we answer the certified question in the negative, 

affirm the judgment of the appellate court, and remand the cause to the circuit court 
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for further proceedings. 

¶ 53 Certified question answered. 

¶ 54 Judgments affirmed.

¶ 55 Cause remanded for further proceedings. 

¶ 56 JUSTICE MICHAEL J. BURKE, specially concurring: 

¶ 57 I agree with the majority that the injury as alleged is not compensable under the 

Compensation Act because, quite simply, there is no injury. Moreover, any risk of 

future injury is alleviated by the availability of permanent injunctive relief in the 

underlying action. 

¶ 58 McDonald and the putative class have not suffered a physical, emotional, or 

financial injury. We know this because McDonald amended her complaint to 

remove any allegation that she suffered mental anguish from the purported 

violations of the Privacy Act. The operative, amended complaint sought recovery 

of liquidated damages, not any actual damages. 

¶ 59 Had McDonald persisted in her allegation of mental anguish, the exclusivity 

provisions of the Compensation Act would have barred her claim. But by denying 

the existence of an injury, McDonald preserved her cause of action under the 

Privacy Act. This opportunity for gamesmanship in pleading highlights the 

incongruity of applying the Compensation Act’s exclusivity provisions to Privacy 

Act claims that allege actual injuries but not to those that allege technical violations. 

¶ 60 McDonald contends that her Privacy Act claim should proceed because she has 

suffered absolutely no injury, which is totally inconsistent with the concept that a 

technical violation of the Privacy Act is a “real and significant” injury. See 

Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, ¶ 34.