Effective January 1, 2025, an amendment to the Illinois Right to Privacy in the Workplace Act (SB0508) will add further requirements and responsibilities for Illinois employers who use employment eligibility verification programs such as E-Verify. By expanding employers’ legal obligations, Illinois seems to be effectively taking steps to discourage E-Verify use in the state.
Background of E-Verify in Illinois
E-Verify is a federal web-based program that employers use to confirm the employment eligibility of their employees by comparing the information taken from an employee’s Form I-9 (Employment Eligibility Verification Form) with the records available to the Department of Homeland Security and the Social Security Administration. In Illinois, E-Verify is a voluntary program for most employers unless obligated by federal law (i.e., federal contractors or subcontractors) that provides additional confirmation of an employee’s work authorization. Notably, in 2007, the Illinois legislature tried to prohibit the use of E-Verify in the state on the basis that it may be overinclusive and provide inaccurate information regarding work authorization. However, the 2007 law was struck down by a federal court as unconstitutional based on the Supremacy Clause. This most recent amendment to the Workplace Act is another attempt by the Illinois legislature to revive the same 2007 sentiment. However, to date, no challenges have been asserted to this new amendment, which is set to be effective starting January 1, 2025.
The Amended Act
SB0508 purports to effectively discourage employers from using E-Verify by placing additional requirements and restrictions in Section 13 for those who participate in the federal program. With this amendment to the act, employers cannot impose verification or re-verification requirements that go beyond federal law and must first follow a notice process.
Notice of Work Authorization Discrepancy Found by Employer
If an employer finds a discrepancy in an employee’s employment verification information, the employer must notify the employee of the discrepancy in a manner specified by the act, including the documents forming the basis of the alleged deficiency, instructions on how to correct the alleged deficient documents, and an explanation of the employee’s rights within seven business days.
Notice of Work Authorization Discrepancy Found by Federal or State Agency
Suppose an employer receives notification from any federal or state agency (e.g., involving E-Verify) of a discrepancy related to an employee’s work authorization. In that case, the employer must provide notice in a manner specified by the act to the employee within five business days, including (1) an explanation that the federal or state agency has notified the employer of the work authorization discrepancy and (2) how long the employee has to contest the federal or state agency’s determination. The employer cannot take any adverse action against the employee, including re-verification, based solely on the receipt of the notification.
Notice of Federal or State Agency Inspection of Employer’s I-9 Forms
Employers must notify each current employee of any inspection of I-9 (Employment Eligibility Verification) Forms or other employment records by federal or state inspecting agencies within 72 hours of receiving the notice from the inspecting agency. If the inspecting agency determines that the employee’s work authorization documents do not establish that the employee is authorized to work in the United States and provides the employer with notice of that determination, the employer must provide a written notice to the employee within five business days, unless a shorter timeline is provided for under federal law or a collective bargaining agreement. If the employee contests the inspecting agency’s determination, the employer must notify the employee of the final determination within 72 hours of receiving the final determination notice.
Employee Representation
Section 13 of the act claims to provide additional security to safeguard employees from any potential inaccuracies of the E-Verify databases by requiring a representative of the employee’s choosing to be present in any meetings, discussions, or proceedings related to work authorization. However, the amendment also defines “employee’s authorized representative” as an “exclusive collective bargaining representative.” By using vague and contradictory rules and definitions, Section 13 creates confusion for employers regarding all the parties obligated to receive notification.
Penalties
Employers who willfully and knowingly violate any portion of Section 13 of the act are considered guilty of a petty offense and will receive a civil penalty of between $2,000 and $5,000 for their first violation. Any subsequent violation could range between $5,000 and $10,000 for each violation per affected employee, plus costs, attorneys’ fees, and actual damages.
Key Takeaways for Employers
On its face, this amendment aims to effectively dissuade Illinois employers from using E-Verify by adding additional requirements that are either intentionally or poorly drafted to create confusion and possibly prohibit employers from taking adverse actions against employees with work authorization discrepancies.
Even though there may be legal challenges to this amendment, employers in Illinois who participate in E-Verify must be prepared to comply with the final amendment and should do so before the effective date of January 1, 2025. This includes:
- Reviewing current employment verification practices to ensure that current work authorization verification or re-verification requirements are not greater than what is obligated by federal law.
- Reviewing company policies to assess whether they adequately implement the notice requirements in the time, form, and manner described in the act.
Alston & Bird’s Labor & Employment Group regularly counsels clients on numerous issues related to I-9 compliance and E-Verify and can guide and assist clients on this significant development.