|January 4, 2010|
Previously published on December 2009
An Illinois law going into effect on January 1, 2010, places significant new state-level obligations on employers who use the federal E-Verify program to check the identity and work authorization of their employees. Although the statute is consistent with federal E-Verify requirements in certain areas, it goes well beyond the federal provisions in others.
Under the new law, which amends the Illinois Right to Privacy in the Workplace Act, Illinois employers are required to sign a sworn attestation either upon initial enrollment in E-Verify, or by January 31, 2010 if they are already enrolled in the program. An official E-Verify attestation form provided by the Illinois Department of Labor (“IDOL”) is available for employers to use. The attestation form affirms that the employer has received the requisite E-Verify training materials from the U.S. Department of Homeland Security (“DHS”), and that all employees with access to the company’s E-Verify account have completed mandatory online E-Verify tutorials. It further states that the employer has posted the required legal notices regarding its enrollment in E-Verify and certain non-discrimination procedures. The employer must retain the signed original attestation and proof of its employees’ E-Verify training.
The Illinois law also details a number of prohibited actions, the knowing and willful violation of which can result in significant company fines and petty offense charges for executives and HR managers. The following actions are prohibited:
- Failing to display the appropriate E-Verify related notices.
- Allowing an untrained employee to use the E-Verify system.
- Failing to take reasonable steps to prevent an employee from using another's login and password in lieu of completing his or her own E-Verify tutorial with the DHS.
- Using E-Verify on an applicant prior to hiring, or prior to completing the Form I-9 process.
- Terminating or otherwise taking adverse action against an employee prior to a receiving a Final Non-Confirmation (for E-Verify related reasons).
- Failing to notify an employee in writing of a Tentative Non-Confirmation and his or her right to contest it.
- Failing to safeguard the information contained in the E-Verify database and the means of access to it (passwords, etc.).
The statute gives injured employees a private right of action in state court after first seeking redress with the IDOL.
E-Verify is a federal database system administered by DHS and Social Security Administration (“SSA”). Using information from the Form I-9, participating employers can electronically verify the identity and work authorization of their newly hired employees and, in the case of federal contractors, of their existing employees. E-Verify is available at no charge to employers. Registration is generally voluntary although it can become mandatory if a company has qualifying federal contracts/subcontracts under the Federal Acquisitions Regulations, or if it operates in a jurisdiction where E-Verify is required for all employers, such as Arizona, Mississippi and South Carolina. Once an employer registers for E-Verify, it must sign a Memorandum of Understanding with DHS and SSA legally obligating it to use the system for all new employees, and to use it in a manner that is nondiscriminatory and protective of employee privacy. It is largely in the areas of employee nondiscrimination and privacy that the Illinois statute imposes additional obligations.
As a rule, E-Verify is not required in Illinois. In fact, Illinois is the only state that has tried to block the use of E-Verify by private employers. Concerned about inaccuracies in the E-Verify data kept by the federal government as well as ongoing privacy implications for workers, Illinois enacted a law in 2007 that would have prohibited private employers from using E-Verify until the federal government made specific improvements to the system. However, DHS challenged the Illinois law in federal court and eventually won. Thus, the provision of the Illinois law prohibiting employers from using E-Verify was struck down, but the rest of the statute survived. An amended version of the law was enacted in August 2009, and it is that version which will go into effect on January 1, 2010.
On October 20, 2009, five former workers at two companies located in suburban Chicago filed complaints with the IDOL alleging that their former employers had violated provisions of the Illinois state law by improperly using the E-Verify database to assess their legal status and work authorization. The complaints are the first of their kind in Illinois or anywhere. The employees allege that they were terminated, some apparently after years of employment, because information in the E-Verify database allegedly revealed that they were not authorized to work in the United States. Their former employers presumably should not have had access to such information since E-Verify is intended only for newly hired employees. The worker privacy rules in the Illinois E-Verify law do not distinguish between U.S. workers and unauthorized workers. The IDOL is currently investigating the complaint and if a decision is made in favor of the former workers, the two companies could face significant fines and possible litigation.