The Illinois Biometric Information Privacy Act (BIPA)¹ contains an exemption in Section 25(e) of the Act that provides BIPA does not apply to a government contractor (the “Government Contractor Exemption.”) Section 25(e) provides: “[n]othing in this Act shall be construed to apply to a contractor, subcontractor, or agent of a State agency or local unit of government when working for that State agency or local unit of government.”² On April 28, 2026 in an interlocutory decision in Thomas v. Cornerstone Services, the Illinois Appellate Court, Third District, held that the Government Contractor Exemption applies and shields a defendant from liability under BIPA during the entire time the defendant is performing services for a governmental entity regardless of whether the defendant is exclusively performing services for the governmental entity.³

The plaintiff filed a BIPA class action against Cornerstone Services, Inc. alleging Cornerstone utilized a finger scan biometric timekeeping system without complying with the requirements of BIPA. Cornerstone provides services and support to Illinois residents with intellectual and developmental disabilities and had a contractual relationship with the State of Illinois and received funding from the Illinois Department of Human Services (DHS). The plaintiff was a Cornerstone employee from 2020 to 2022 and alleged that during her employment, Cornerstone collected her biometric information and shared it with Automatic Data Processing without her consent, in violation of BIPA.

Cornerstone filed a motion to dismiss, asserting that it was a government contractor, and was therefore exempt from regulation under BIPA, pursuant to the Government Contractor Exemption. Cornerstone pleaded that it received funds from the DHS for providing housing and support services to qualified applicants with disabilities, including more than $23 million annually during the years in which the plantiff was employed by it. The plaintiff opposed the motion to dismiss, arguing that the applicability of the Government Contractor Exemption depended on whether Cornerstone collected her biometrics while providing services to its government contract. The plaintiff asserted that publicly available information made it reasonable to infer that Cornerstone was not a government contractor at all relevant times.

On April 24, 2024, the circuit court denied Cornerstone’s motion to dismiss. The court questioned whether the Government Contractor Exemption applies for work done by Cornerstone outside of the government contractor role. Cornerstone filed a motion to certify the question for interlocutory appeal and on November 19, 2024, the court denied the motion. Cornerstone filed a motion for a supervisory order to the Illinois Supreme Court, requesting it to order the court to certify the question for interlocutory appeal. On March 26, 2025, the Illinois Supreme Court granted Cornerstone’s motion and issued a supervisory order directing the circuit court to grant Cornerstone’s motion to certify the question for appellate review.⁴

Two questions were certified for appellate review. First, whether the Government Contractor Exemption applies only to contractors that work exclusively for the government, or inversely, whether there are circumstances where a contractor that also engages in nongovernmental work may invoke the Government Contractor Exemption. The second question sought the determination of whether the Government Contractor Exemption applies through the construction of the phrase “when working for” in Section 25(e).

On April 28, 2026, the Illinois Appellate Court, Third District, issued its decision. As to the first certified question, it utilized a statutory construction analysis to find that the answer was no. It held that “nothing in the plain language of the Act rescinds a government contractor’s ability to assert the exemption by virtue of engaging in separate private undertakings. Had the legislature intended to limit the exemption to apply only to contractors in an exclusive relationship with the government, it would have included language to that effect.”⁵

As to the second question, the Appellate Court held that “the phrase ‘when working for the State agency or local unit of government’ exempts a government contractor’s actions only when it possesses a government contract and its alleged violation was within the scope of its government contractual work.”⁶

Under the Third District’s decision, if a defendant collects a plaintiff’s biometric information when the plaintiff was performing work under a government contract, then the Government Contractor Exemption would apply, and the defendant is not subject to BIPA. However, if the plaintiff was working on a nongovernmental project at the time of the collection of biometric information, then the defendant would be subject to BIPA. This decision provides little relief for employers performing services under both government and private contracts. Unless an employer exclusively performs work under government contracts, the employer should assume BIPA applies, and they are not exempt under the Government Contractor Exemption.

It would appear that this issue will reach the Illinois Supreme Court at some point as one of the parties will likely seek leave to appeal. Since the Illinois Supreme Court intervened and issued a supervisory order directing the circuit court to allow an interlocutory appeal of the questions, it would appear that the Illinois Supreme Court would be inclined to grant leave to appeal the Third Circuit’s decision.

^{[1] 740 ILCS 14/1 et seq. (2026).
[2] 740 ILCS 14/25(e) (2026.
[3] Thomas v. Cornerstone Services, Inc., 2026 IL App (3d) 240568, 2026 WL 1142067 (IL App. 3rd Dist. Apr. 28, 2026)
[4] Thomas v. Cornerstone Services, Inc., No. 131339, 256 N.E.3d 981 (Table) (IL S. Ct. March 26, 2025)
[5] Thomas, 2026 IL App (3d) 240568 at ¶23, 2026 WL 1142067 at *4.
[6] Thomas, 2026 IL App (3d) 240568 at ¶30, 2026 WL 1142067 at *6}

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.