The Illinois Department of Labor (IDOL) has just issued some much-needed guidance, through Frequently Asked Questions (FAQs), on whether enrollment and use of E-Verify is prohibited in Illinois for private employers that do not have federal contracts. The answer is NO.
As many Illinois employers, and those with Illinois operations, know, in July 2024, Illinois enacted Amendments to the Right to Privacy in the Workplace Act (hereinafter “Act”) with an effective date of January 1, 2025. The amendments provide additional employment protections for individuals flagged by federal E-Verify as having identification discrepancies.
After enactment of the amendments, Illinois employers have been waiting on IDOL guidance over whether employers in Illinois are prohibited from using E-Verify. The source of the confusion was two separate clauses which, if read together, seem to imply there is such a prohibition. The two clauses were:
Section 12(a): Nothing in this Act shall be construed to require an employer to enroll in any Electronic Employment Verification System, including the E-Verify program and the Basic Pilot program, as authorized by 8 U.S.C. 1324a, …. beyond those obligations that have been imposed upon them by federal law.
Section 13(b): An employer shall not impose work authorization verification or re-verification requirements greater than those required by federal law.
In the answer to Question 4 of the FAQs, however, the IDOL states: “Illinois law does not prohibit any employer from using E-Verify. However, employers who use E-Verify must follow the requirements of the Right to Privacy in the Workplace Act.” Thus, many employers and their counsel are relieved that the IDOL has provided guidance that the Act does not prohibit E-Verify. The guidance was likely assisted by the fact that in 2007, Illinois enacted a law prohibiting the use of E-Verify and in 2009, a federal court found federal law preempted this state law.
The FAQs also state that E-Verify is not required for use by employers in Illinois, except for a federal contractor, which is required by FAR E-Verify to do so. The FAQs also answered other related questions, including:
May a unit of local government require any employer to use E-Verify?
No. Neither the State nor any of its political subdivisions, nor any unit of local government, including a home rule unit, may require any employer to use an Employment Eligibility Verification System.
What happens if an employer says that there is a discrepancy in an employee’s employment verification information?
The Act requires employers follow certain steps if they believe that an employee’s employment verification information is inaccurate, which includes providing the employee with specific information about the claimed discrepancy and allowing the employee to correct the discrepancy (if required by law). An employee has the right to representation during any meetings or discussions regarding employment verification information.
Under this part of the Act, the amendments require the employer to provide the employee with certain notices concerning the discrepancy. These notices include the following requirements:
Providing the employee with the specific document(s) that the employer deems to be deficient, the reason for deficiency, and upon request by the employee, the employer must give the employee the original document forming the basis for the deficiency within seven business days, and would require employers to give employees time to correct documentation discrepancies;
Instructions on how the employee may correct the alleged deficiencies, if required to do so by law; and
An explanation of the employee's right to have representation present during related meetings, discussions, or proceedings with the employer, if allowed by a memorandum of understanding concerning the federal E-Verify system.
The Act also affords employees additional protections when an employer receives notification from any federal or state agency, such as Immigration & Customs Enforcement, of a discrepancy, such as Notice of Suspect Documents, in relation to work authorization. These rights and protections include the following:
The employer must not take any adverse action against the employee based on notification of discrepancy;
The employer must provide a notice to the employee as soon as practicable, but not more than five business days after the date of receipt of the notification, unless a shorter timeline is provided for under federal law or a collective bargaining agreement. [Actually, federal law says within 10 business days.] The notice must include an explanation of the state or federal agency’s notification of discrepancy and the time period the employee has to contest the determination from the federal or state agency.
Employers with questions related to the Illinois Act are advised to speak to their immigration compliance or employment counsel.
