Illinois Governor JB Pritzker has signed an amendment to the Illinois Right to Privacy in the Workplace Act that provides additional employee protections regarding employers’ use of E-Verify. The amendment’s effective date is Jan. 1, 2025, and applies to both private and public employers.
Illinois already had specific rules to ensure that E-Verify is used correctly and fairly. Illinois already:
- Urged employers to consult the Illinois Department of Labor (IDOL) website for current information regarding the accuracy of the program
- Encouraged employers to review and understand their legal responsibilities under E-Verify
- Required all those who administer E-Verify to complete Computer Based Training
- Required employers to post an E-Verify poster in the workplace in both English and Spanish
- Required notification to an employee in writing of a receipt of a Tentative Nonconfirmation Notice (TNC) and their rights to contest the TNC
- Made it clear that an employee could not be terminated prior to receiving a final nonconfirmation notice from the Social Security Administration or the DHS
- Admonished employers to safeguard the information in the system
The amendment continues along the same lines with more specific requirements regarding rights and protections for workers. These include specific notice posting requirements and specific timing on notices to employees about TNCs or upcoming I-9 inspections. Additionally, under the amendment, employees may have representation in meetings regarding TNCs.
The purpose of the amendment may be to ensure employers in Illinois do not exceed federal E-Verify regulations and requirements and treat all employees respectfully by providing sufficient notice of upcoming investigations or TNCs so the employees can plan accordingly.
Some commentators have noted, however, that the new law could be read to prohibit or at least discourage employers from using E-Verify unless required to use it by federal law.
That interpretation is concerning. The amendment adds penalties for violations of the notice provisions that include actual damages plus costs and reasonable attorney’s fees for willful and knowing violations. Although IDOL usually attempts to resolve violations through mediation, IDOL and individual complainants can commence actions in court.
We expect IDOL to issue new guidance before the effective date.
Jackson Lewis attorneys are available to advise employers in Illinois regarding preparing for that effective date.
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