Frisby v. Sky Chefs, Inc.
| Decision Date | 03 August 2020 |
| Docket Number | Case No. 19 C 7989 |
| Parties | LARRY FRISBY, Plaintiff, v. SKY CHEFS, INC. and LSG GROUP, LLC, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Larry Frisby, on behalf of himself and others similarly situated, has sued his former employer, an airline catering business, along with the company that owns it. Frisby has asserted claims of negligence and violation of the Illinois Biometrics Privacy Information Act (BIPA), both based on his former employer's acquisition and use of employees' fingerprints for timekeeping. Additionally, Frisby has sued under various labor laws for unpaid overtime wages. The defendants have moved to dismiss all of these claims.
LSG Group LLC owns several companies in the travel industry. One of its companies, Sky Chefs, Inc., provides catering services to airlines.
Sky Chefs collects employees' fingerprints at time of hire, and its hourly employees must clock in and out of their shifts via fingerprint scans. A third-party vendor administers this fingerprint-based time tracking, and Sky Chefs therefore shares its employees' fingerprint data with this vendor.
Sky Chefs requires its employees to clock in five to six minutes before the start time of their shifts, and it disciplines those who fail to do so. Frisby alleges that despite this policy, Sky Chefs does not compensate its employees for this mandatory pre-shift time or for any post-shift work. Instead, Sky Chefs typically rounds the time for which it compensates employees to their scheduled shift times.
From November 2015 through March 2019, Frisby worked as a driver for Sky Chefs at O'Hare International Airport. He was paid by Sky Chefs on an hourly basis. Frisby regularly clocked in five to six minutes before start of his shift time, consistent with Sky Chefs' policy described earlier, and he typically worked fifty to fifty-five hours per week. During his employment, Frisby alleges, he worked more than 100 hours of overtime for which Sky Chefs never compensated him.
Frisby has filed this suit on behalf of himself and other similarly situated Sky Chefs employees, asserting claims of negligence and violation of BIPA and several labor laws by Sky Chefs and the LSG Group. The defendants have moved to dismiss all of the claims in Frisby's complaint, and the Court held a hearing on the motion.
BIPA regulates private entities' acquisition and management of biometric information, which includes fingerprints. 740 ILCS 14/10, 15. Before acquiring an individual's fingerprints, a "private entity" must inform the individual or his "legally authorized representative," in writing, about the purpose of acquisition, how the data will be stored, and how long the entity plans to keep it. 740 ILCS 14/15(b). The privateentity may acquire a person's fingerprints only if it has received written consent from the person or his legally authorized representative. Id. BIPA also requires consent for disclosure or "other[] disseminat[ion]" of an individual's fingerprints. Id. 15(d). Finally, a public entity that obtains biometric information must publicly issue protocols for retention and destruction of biometric information once its purpose has been satisfied. Id. 15(a).
In count 1, Frisby has alleged that Sky Chefs violated BIPA because it failed to provide the required disclosures prior to obtaining his fingerprints; it never received written consent to acquire the prints or share them with the third-party timekeeping vendor; and it never published protocols for retention and destruction of employee fingerprints. Count 2, a common law negligence claim, is largely based on the same conduct: Frisby alleges that the defendants breached their duty of reasonable care by obtaining and using employee fingerprints without complying with the procedural safeguards set forth in BIPA.
The defendants have moved to dismiss counts 1 and 2 under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, arguing that they are preempted by the federal Railway Labor Act (RLA). "A motion to dismiss under Rule 12(b)(1) tests the jurisdictional sufficiency of the complaint, accepting as true all well-pleaded factual allegations and drawing reasonable inferences in favor of the plaintiffs." Bultasa Buddhist Temple of Chi. v. Nielsen, 878 F.3d 570, 573 (7th Cir. 2017). The plaintiff's well-pleaded factual allegations must "plausibly suggest a claim of subject matter jurisdiction." Silha v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015). When a party contends that the pleadings are formally sufficient but that "there is in fact no subject matter jurisdiction," a court may review "any evidence submitted to determine if subjectmatter jurisdiction exists." Id. at 173.
The RLA, which applies to "common carrier[s] by air," 45 U.S.C. § 181, requires that any dispute regarding the interpretation or application of a collective bargaining agreement—called a "minor dispute"—go to an adjustment board, not a court. Miller v. Sw. Airlines Co., 926 F.3d 898, 900 (7th Cir. 2019). The Seventh Circuit ruled in Miller that the RLA preempted airline employees' BIPA claims based on the airline's failure to obtain consent and provide required disclosures before using employee fingerprints for timekeeping via a third-party vendor. Id. at 904. The court explained that, "[a]s a matter of federal law, unions in the air transportation business are the workers' exclusive bargaining agents," and "how workers clock in and out" is "a mandatory subject of bargaining." Id. at 903 (citing 45 U.S.C. § 152). The employees' union was their "legally authorized representative" for the purpose of determining whether they had received the disclosures and given the consent required under BIPA for the use of their fingerprints for timekeeping. Id. at 903. The court explained: "It is not possible even in principle to litigate a dispute about how an air carrier acquires and uses fingerprint information for its whole workforce without asking whether the union has consented on the employees' collective behalf." Id. at 904. Thus, the employees' BIPA claim was preempted by the RLA, which directs such disputes to an adjustment board. Id.
The defendants point out that while working for Sky Chefs, Frisby was a member of the Unite Here International Union, and his employment was subject to a collective bargaining agreement (CBA) between Sky Chefs and the union. Frisby's BIPA and negligence claims are based on allegations almost identical to those of the union airline employees in Miller, and thus, the defendants argue, Frisby's claims are likewisepreempted by the RLA. Frisby does not dispute that his employment with Sky Chefs was governed by the CBA. He argues, however, that his claims are not preempted because Sky Chefs is a catering business and does not meet the definition of "common carrier by air" under the RLA. This argument lacks merit.
The RLA does not define "common carrier by air," and the Seventh Circuit has not yet interpreted this language. Federal courts that have considered the issue apply a test similar to that set forth by the National Mediation Board (NMB), the agency that administers the RLA. See, e.g., Allied Aviation Serv. Co. of N.J. v. NLRB, 854 F.3d 55, 61 (D.C. Cir. 2017); Thibodeaux v. Exec. Jet Int'l, Inc., 328 F.3d 742, 750 (5th Cir. 2003) (). The NMB's "function and control test" has two elements: "(1) whether the nature of the work is that traditionally performed by employees of rail or air carriers, and (2) whether the employer is directly or indirectly owned or controlled by, or under common control with a carrier or carriers." Allied Aviation Serv., 854 F.3d at 61 (quoting Signature Flight Support of Nev., 30 N.M.B. 392, 399 (2003)). If the both the function and control elements are met, then the entity qualifies as a carrier under the RLA. See Signature Flight Support, 30 N.M.B. at 399. The parties do not dispute that the function-and-control test should apply.
Frisby argues that the control element of the test is not satisfied because the defendants' operations are not under the control or ownership of any airline. But this contention is unsupported by the evidence submitted by the defendants, which shows that they are owned in full by Deutsche Lufthansa AG, an air carrier. See Silha, 807 F.3d at 173 (). Thus, the control element is met.
As to the function element, Frisby argues that the defendants are food suppliers, and food supply is not a function traditionally performed by air carriers. The defendants explained at oral argument, however, that Sky Chefs is not simply a food supplier; rather, it performs "catering," which includes preparation of food that airlines serve to their passengers during flight. Preparation of food for in-flight service to airline passengers, according to the defendants, is a traditional function of air carriers.
The Court agrees. As the defendants point out, the NMB has consistently concluded that catering food for in-flight service is a function traditionally performed by air carriers.1 See, e.g., Dobbs Int'l Servs., 34 N.M.B. 97, 108 (2007); LSG Sky Chefs, Inc., 27 N.M.B. 55, 62 (1999); Sky Chefs, Inc., 15 N.M.B. 397, 403 (1988). In 1988, the NMB issued an opinion letter, after a hearing at which both Sky Chefs and its employees' union presented evidence, in which it concluded that Sky Chefs' business of "provision of inflight food and beverage catering services" to airlines was a traditional function of air carriers. Sky Chefs, Inc., 15 N.M.B. at 397, 403. The NMB explained that Sky Chefs was originally established as a subsidiary of American Airlines, and thus "[f]or over...
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