This article originally appeared on Law360, here.

An Illinois federal judge signaled Tuesday that a former maintenance company employee is likely fighting an uphill battle to advance his biometric privacy suit, considering Seventh Circuit case law suggesting his claims are preempted by the Labor Management Relations Act.

U.S. District Judge Gary Feinerman said that considering its opinions in Miller v. Southwest Airlines and Fox v. Dakkota Integrated Systems, the Seventh Circuit has dealt former Crown Energy Services Inc. employee Trevor Carmean “a very, very tough hand” despite his “valiant” effort to other workers’ under the Illinois Biometric Information Privacy Act.

“If it doesn’t work, it has nothing to do with your effort,” Judge Feinerman told Carmean’s attorney, Michael Drew of Neighborhood Legal LLC, during the Tuesday hearing. “It has to do with the hand you were dealt.”

Crown Energy argues that the LMRA blocks Carmean’s claims because resolving his dispute would require interpreting a collective bargaining agreement, which is the same fate the paintiff’s cliams met in Miller. But Drew argued Tuesday that Judge Feinerman should let his client’s claims proceed because Carmean’s CBA doesn’t cover clocking in and clocking out, and “BIPA doesn’t allow any other type of consent except explicit, informed written consent.”

Judge Feinerman said that although Drew’s argument seemed plausible and could be correct “as an original matter,” the Seventh Circuit’s Miller decision appears to have resolved that issue against him. In Miller, the Seventh Circuit said the Railway Labor Act required and adjustment board to resolve the unionized employees’ dispute over the air;ine’s fingerprint collection practices because their unions may have bargained over the practice on their behalf.

Drew argued it’s unclear whether the Seventh Circuit’s Miller decision definitively answers the question LMRA preemption, particularly since the RLA includes a mandatory arbitration provision that isn’t present in the federal labor law.

The RLA’s mandatory arbitration element seems appropriate because allowing the nation’s railways and airlines to operate uninterrupted by minor disputes was a major factor in pass that law, Drew argued.

“I think given these differences between the RLA and its history and purpose and the LMRA and its history and purpose, a slightly more demeaning standard under the RLA makes sense,” he said.

Judge Feinerman said although Carmean’s position again sounded plausible as an original issue, he found it “hard to ignore” the Seventh Circuit’s “very substantial hint” at the end of its Fo decision that the answer regarding LMRA preemption appears to flow from the Miller decision. But Drew urged Judge Feinerman not to take the appellate court’s suggestion as a dispositive answer one the issue, arguing “a hint is just a hint.”

And to the extent that Miller decision relies on the notion that the RLA preempts topics affecting an entire workforce while not preempting topics that affect only parts of a workforce, “then I think that factual distinction is pretty important in this case” because Carmean’s claims apply only to about 40 or 50 Crown Energy employees who used a specific clock at work, Drew argued.

Crown Energy’s attorney Jamie Filipovic of O’Hagan Meyer LLC, urged Judge Feinerman to reject Carmean’s arguments and follow not only Seventh Circuit case law but also a host of district court decisions that have also found unionize employees’ BIPA claims preempted under the LMRA. She also rejected the notion the Carmean’s CBA doesn’t cover clocking in and clocking out, arguing that “exactly” the sort of practice that falls under a union contract’s management rights provision.

Filipovic also argued that Carmean’s suit should be tossed because it fails to state a plausible claim against Crown Energy, which does business as Able Engineering Services. The former employee claims his biometric privacy rights were violated but has included no facts in his complaint or otherwise specifically detailing what rights Able had to collect, store or use his biometric information, she told Judge Feinemrman.

“The facts are not in the complaint in that regard, so I think that’s an additional layer that needs to be considered even though I do believe LMRA preemption is dispositive here,” she argued.

Carmean launched his suit in September claiming that his former employer violated BIPA when it required him and certain other workers to scan their fingerprints to clock in and out of work without first obtaining their informed consent. He claims the company has also failed to provide its workers with a publicity available policy governing its data collection and storage, and unlawfully left its biometric database open to large numbers of company employees, agents and subcontractors.

He’s looking to represent a class of similarly situated Able Engineering employees whose fingerprints were scanned and stored by managers of the Chicago condominium building where he worked. His suit asks the court to award him and the proposed class statutory damages of $1,000 for every negligent BIPA violation and $5,000 for every willful violation.

Filipovic told Law360 in an email after the hearing that she and her client believe that in this case, just as the Seventh Circuit said in Fox, the answer to the question of LMRA preemption “flows directly from Miller.”

“As such, the unionized plaintiff’s BIPA cliams in this case are clearly preempted by the LMRA,” she said.

Drew declined to comment Tuesday.

Carmean is represented by Michael Drew of Neighborhood Legal LLC and Celetha Chatman of Community Lawyers Group Ld.

Crown Energy is represented by Jamie Filipovic and Timothy Hayes of O’Hagan Meyer LLC.

The case is Carmean v. 850 Investors LLC, case number 1:20-cv-05294, in the U.S. District Court for the Northern District of Illinois.

By: Laurann Wood

— Additional reporting by Celeste Bott. Editing by Ellen Johnson.