Illinois has enacted legislation that will prohibit employers from imposing work authorization or re-verification requirements that are greater than those required by federal law. The new law (Senate Bill 508) also requires employers who use E-Verify or another electronic employment verification system to provide certain notices if an employer asserts that a discrepancy exists in an employee’s employment verification information. Senate Bill 508 takes effect Jan. 1, 2025.
The Details
Background
E-Verify is an internet-based system operated by the federal government that enables employers to determine a new hire’s eligibility to work in the United States. E-Verify checks whether the information on a new hire’s Form I-9 matches government records in Department of Homeland Security (DHS) and Social Security Administration (SSA) databases, and whether the new hire is authorized to work in the United States.
Existing Illinois law includes training and notice requirements for employers.
Senate Bill 508
The new law prohibits Illinois employers from imposing work authorization or re-verification requirements that are greater than those required by federal law and adds to the existing notice requirements. For example, if an employer uses E-Verify or another electronic employment verification system and contends that there is a discrepancy in an employee's employment verification information, the employer must provide the employee with:
- The specific document or documents, if made available to the employer, that the employer deems to be deficient and the reason why the document or documents are deficient. Upon request by the employee or the employee' authorized representative, the employer must give to the employee the original document forming the basis for the employer's contention of deficiency within seven business days.
- Instructions on how the employee can correct the alleged deficient documents if required to do so by law.
- 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.
- An explanation of any other rights that the employee may have in connection with the employer's contention.
When an employer receives notification from any federal or state agency, including, but not limited to, the Social Security Administration or the Internal Revenue Service, of a discrepancy as it relates to work authorization, the following rights and protections are granted to the employee.
- The employer is prohibited from taking any adverse action against the employee, including re-verification, based on the receipt of the notification.
- The employer must provide a notice to the employee and, if allowed by a memorandum of understanding concerning the federal E-Verify system, to the employee's authorized representative, if any, no 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. The notice to the employee must include:
- The employer must notify the employee in person and deliver the notification by hand, if possible. If hand delivery isn’t possible, then the employer must notify the employee by mail and email, if the email address of the employee is known, and must notify the employee's authorized representative. Upon request by the employee or the employee's authorized representative, the employer must give to the employee the original notice from the federal or state agency within seven business days. This original notice must be redacted in compliance with state and federal privacy laws and must relate only to the employee receiving the notification.
- The employee may have a representative of the employee's choosing in any meetings, discussions, or proceedings with the employer.
The procedures described above do not apply to inspections of an employer's I-9 Employment Verification Forms (I-9s) by an inspecting entity (ex. the U.S. Immigration and Customs Enforcement, United States Customs and Border Protection, or any other federal entity enforcing I-9 requirements).
Additional Notice Requirements
Except as otherwise required by federal law, an employer must provide a notice to each current employee, by posting in English and in any language commonly used in the workplace, of any inspections of I-9s or other employment records conducted by the inspecting entity within 72 hours after receiving notice of the inspection. Written notice must also be given within 72 hours to the employee's authorized representative, if any.
- The posted notice must contain the following information:
- On or before six months after Jan. 1, 2025, the state will develop a template posting that employers may use to comply with the requirements to inform employees of a notice of inspection. The state will make the template available on its website so that it is accessible to employers.
- Except as otherwise required by federal law, if during an inspection of the employer's I-9 forms by an inspecting entity, the inspecting entity makes a determination that the employee's work authorization documents don’t establish that the employee is authorized to work in the United States and provide 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.
The employer must notify the employee in person and deliver the notification by hand, if possible. If hand delivery isn’t possible, then the employer must notify the employee by mail and email, if the email address of the employee is known, and must notify the employee's authorized representative. The employer's notice to the employee must contain the following information:
If the employee contests the inspecting entity's determination, the employer will notify the employee within 72 hours after receipt of any final determination by the inspecting entity related to the employee's work authorization status. Upon request by the employee or the employee's authorized representative, the employer must give the employee the original notice from the inspecting entity within seven business days. This original notice must be redacted in compliance with state and federal privacy laws and must relate only to the employee receiving the notification.
The law does not require a penalty to be imposed for a failure to provide notice to an employee at the express and specific direction or request of the federal government.
Next Steps
- Review policies and practices to ensure compliance with the law.
- Some commentators have noted that the new law could be read to prohibit Illinois employers from using E-Verify unless required to use it by federal law. We expect the Illinois Department of Labor to issue guidance in the future. In the interim, you should consult with appropriate legal counsel if you have questions.
- Train supervisors on the changes.