Illinois Prohibits Unfair Enforcement of Employment Verification Practices

On Aug. 9, 2024, Illinois Gov. JB Pritzker signed Senate Bill 0508 into law. This new law provides additional employment protections for individuals flagged by an employment eligibility verification system, including federal E-Verify, as having identification discrepancies. The new rights and protections created by SB 0508 will take effect on Jan. 1, 2025.

In May of 2023, the state amended its Illinois Right to Privacy in the Workplace Act. The amendment mandated a specified process employers need to follow if they choose to take an adverse employment action against an employee after receiving notice from an employment eligibility verification system of a discrepancy between an employee’s name and Social Security number. The May 2023 amendment also granted employees certain rights and protections if any such discrepancies arose.

On the heels of this prior amendment, SB 0508 clarifies an employee’s rights in the event of an E-Verify “no match.” The new law will prevent employers from imposing work authorization verification requirements that are greater than those required by federal law. If an employer asserts that a discrepancy exists in an employee’s employment verification information, the employer is obligated to provide the employee with certain notices. 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 original document forming the basis for the deficiency within seven business days.
• Giving employees time to correct documentation discrepancies as well as instructions on how the employee may correct the alleged deficiencies, if required to do so by law.
• Providing 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.
• Providing an explanation of any other rights the employee may have in connection with the alleged discrepancies.

In addition to providing these notices, SB 0508 also affords employees additional rights and protections when an employer receives notification from any federal or state agency of a discrepancy 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. 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.
• The employee may have a representative of the employee's choosing in any meetings, discussions, or proceedings with the employer.

SB 0508 also provides new provisions that require employers to provide notice to each current employee, by posting in English and in any language commonly used in the workplace, of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by the inspecting entity within 72 hours after receiving notice of the inspection. The posted notice shall contain the following details:

• The name of the entity conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.
• The date that the employer received notice of the inspection.
• The nature of the inspection to the extent known by the employer.
• A copy of the notice received by the employer.

The new law makes an important note that 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 do not establish that the employee is authorized to work in the U.S. and provides the employer with notice of that determination, the employer shall 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.

This provision requires the employer to notify the employee in person and deliver the notification by hand, if possible. Alternatively, the employer may deliver the notification by mail and email, if the email address of the employee is known. The employer’s notice to the employee shall contain the following information:

• An explanation that the inspecting entity has determined that the employee’s work authorization documents presented by the employee do not appear to be valid or reasonably relate to the employee.
• The time period for the employee to notify the employer whether the employee is contesting or not contesting the determination by the inspecting entity.
• If known by the employer, the time and date of any meeting with the employer and employee, or with the inspecting entity and employee, related to the correction of the inspecting entity’s determination that the employee’s work authorization documents presented by the employee do not appear to be valid or reasonably related to the employee.
• Notice that an employee has the right to representation during any meeting scheduled with the employer and the inspecting entity.

In the event an employee contests the determination, the employer is to notify the employee within 72 hours of receipt of any final determination from the inspecting agency regarding the employee’s work authorization.

It is critical for employers to be mindful of these new provisions as a violation opens the door for an employee or applicant for employment to commence action to enforce these provisions. If the employee or applicant prevails in court, they shall be awarded actual damages plus costs along with additional monetary penalties for willful and knowing violations.

Deepti Orekondy and Jorge R. Lopez are attorneys with Littler in Miami. © 2024 Littler. All rights reserved. Reposted with permission.