Illinois recently amended the Illinois Right to Privacy in the Workplace Act. However, the changes have little to do with privacy. Rather, the amendments increase workers’ notice of employment eligibility audits and rights in connection with employment verification tools such as E-Verify. E-Verify is an electronic system that compares an employee’s proof of identity and work authorization with official government databases to confirm employment eligibility. The amendments place an extra burden on employers when issues of entitlement to work in the United States arise with any of their employees. The amendments to the Act go into effect January 1, 2025.
The Changes to the Act
Some key provisions of the Act include:
- Prohibitions restricting employers from imposing verification or re-verification requirements greater than those required under federal law;
- Procedures for employers to follow when an inspecting entity (such as U.S. Immigration and Customs Enforcement) conducts an I-9 audit including:
- Notify employees of the inspection within 72 hours by posting a document in English and in any language commonly used in the workplace;
- The notice must include the name of the inspecting entity, the date the employer received the notice of inspection, the nature of the inspection, and a copy of the notice received by the employer. The Illinois Department of Labor (IDOL) will publish a template to their website by July 1, 2025, that can be used to provide such notice. Employers need to create their own posting notice if such an inspection occurs before IDOL’s template is released;
- Providing written notice to the union if employees are union represented;
- Procedures for employers to follow when an I-9 audit results in the inspecting entity making a finding that an employee’s documents do not establish that they are authorized to work in the U.S. Such procedures include:
- Provide written notice to the employee;
- The notice should be hand delivered, if possible, and made within 5 business days of the employer receiving notice (unless a shorter timeline is provided for under federal law or a collective bargaining agreement);
- If hand delivery is not possible, then the notice should be given by mail and email, and to the union. The notice should relate to the individual employee only;
- The notice must explain the inspecting entity determined the employee’s documents do not appear to be valid, and the time period for the employee to notify the employer whether they plan to contest the determination;
- The notice must include the time and date of any meeting with the employer and employee, or with the inspecting entity and the employee, related to the validity of the documents;
- The notice must include information advising the employee that they have the right to representation during any such meeting;
- If the employee contests the entity’s determination, the employer must notify the employee within 72 hours of receipt of any final determination made by the entity;
- Rights and protections for an employee when the employer receives notification based on something other than the on-site audits discussed above, from any federal or state agency about a discrepancy regarding the employee’s employment verification information (e.g., “No Match Letters” from the Social Security Administration). Such protections include:
- Barring the employer from taking any adverse action against the employee, including re-verification, based on the notification;
- Employers must notify the employee and (if allowed by a memorandum of understanding) the union within 5 business days of the date of receipt of the notification (unless a shorter timeline is provided by federal law or the collective bargaining agreement);
- The notice must include an explanation that the agency has notified the employer that the employee’s documents do not appear to be valid, and the time period the employee has to contest the agency’s determination;
- The notice is to be hand-delivered where possible. Otherwise, it is to be delivered by mail and email;
- The employee may have a representative of their choosing in any related proceedings with the employer;
- Steps employers must take if they, internally and on their own, uncover any discrepancy in the employee’s employment verification information. The steps include:
- Provide the employee with the specific document the employer deems deficient, and the reason why it is deemed deficient;
- Provide the employee with instructions on how the employee can correct the alleged deficient document, if required to do so by law;
- Provide the employee with an explanation of their right to have representation present during related meetings (including union representation if allowed by a memorandum of understanding between the union and the employer), and an explanation of any other rights the employee may have in connection with the employer’s contention;
- New civil penalties for willful violations of the Act.
Is this a trend?
These newly enacted changes add to a growing list of state laws regarding employment verification systems. Other states, such as Florida and Tennessee, mandate the use of E-Verify for many employers. Federal contractors are usually required to use E-Verify. The varying state requirements pose compliance challenges for employers operating in multiple states. Make sure you check with your state’s Department of Labor to determine if your state has jumped on this band wagon.
What Employers Should do to be Compliant.
The new Illinois requirements, which go into effect on January 1, 2025, come at a time when federal immigration enforcement is expected to increase upon the January inauguration of President-elect Donald J. Trump. Will new federal laws overturn state laws or will they just add more obligations. On the other hand, will the states make these laws a center piece for their compliance efforts and not wait for federal action? Time will tell.
Regardless of the legal wrangling, employers must train their hiring teams to understand the federal employment verification mandates and how the Illinois law, or other local law, impacts them. If you are in doubt, seek competent legal counsel.
Brody and Associates regularly advises its clients on state and federal employment verification issues, including E-Verify matters. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
