Illinois Passes State Law Giving Workers Protection from Unfair Enforcement of Employment Verification Practices

On August 9, 2024, Illinois Governor JB Pritzker signed Senate Bill 0508 (“SB0508”) into law. The new law provides additional protections for people flagged by employment eligibility verification systems, including the state’s E-Verify, as having identity differences. The new rights and protections created by SB0508 will go into effect on January 1, 2025.

In May 2023, the state amended its Illinois Right to Privacy in the Workplace Act to mandate a specified process that employers must follow if they choose to take adverse employment action against employee after receiving notice from the employment eligibility verification system of non-compliance. between the employee’s name and social security number. The May 2023 amendment also provided workers with certain rights and protections in the event of such a discrepancy.

Following this earlier amendment, SB0508 clarifies an employee’s rights in the event of an E-Verify “no match.” The new law would prohibit employers from imposing greater work authorization verification requirements than those required by federal law. If the employer confirms that there is a discrepancy in the employee’s employment verification, the employer is obliged to give the employee certain notices. These notices include the following requirements:

• To provide the employee with a certain document that the employer considers to be lacking, the reason for the deficiency, and at the request of the employee, the employer must provide the employee with the original document that establishes the basis for the deficiency within seven business days, and will require that employers give workers time to correct document discrepancies;
• Instructions on how the employee can correct the alleged deficiencies, if required to do so by law;
• Explanation of the employee’s right to representation during related meetings, discussions, or negotiations with the employer, if permitted by the memorandum of understanding regarding the federal E-Verify system; and
• A description of other rights the employee may have in relation to the alleged differences.

In addition to providing these notices, SB0508 also provides employees with additional rights and protections when an employer receives notice from any federal or state agency regarding a noncompliance related to a work permit. These rights and protections include the following:

• The employer must not take any adverse action against the employee pursuant to the notice of disagreement;
• The employer must give notice to the employee as soon as possible, but not more than five business days after the date of receipt of the notice, unless a shorter period is provided under federal law or collective bargaining agreement. The notice must include a description of the state or federal agency’s notice of noncompliance and the time the employee has to contest the decision from the state or federal agency.
• The employee may have a representative of the employee’s choice at any meetings, interviews, or discussions with the employer.

SB0508 also provides new provisions requiring employers to provide notice to each current employee, by posting in English and in any language commonly used on the job, of any test of I-9 Employment Eligibility Verification forms or other employment reports made by the reviewing agency. within 72 hours of receiving the inspection notice. The notice sent will contain the following information:

• The name of the agency that performs the review of I-9 Eligibility Verification forms or other employment records;
• The date the employer received the inspection notice; and
• Type of inspection to the extent known to the employer; and a copy of the notice received by the employer.

The new rule makes an important caveat that if during the review of the employer’s I-9 forms by the reviewing agency, the reviewing agency determines that the employee’s work authorization documents do not prove that the employee has permission to work in the United States. and giving the employer notice of the decision, the employer shall give written notice to the employee within five business days, unless a shorter period is provided under federal law or the collective bargaining agreement .

This provision requires the employer to notify the employee in person and give the notice by hand, if possible, or otherwise, by mail and email, if the employee’s email address is known. The employer’s notice to the employee will contain the following information:

• A statement that the reviewing agency has determined that the employee’s work authorization documents submitted by the employee do not appear to be valid or reasonably related to the job;
• The period of time for the employee to inform the employer whether the employee is contesting or not, when he opposes the decision of the examining body;
• If known by the employer, the time and date of any meeting with the employer and the employee or with the inspection agency and the employee related to the correction of the inspection agency that the work permit documents presented by the employee do not appear to be valid. or reasonably related to the employee; and
• Note that the employee has the right to representation during any scheduled meeting with the employer and the inspection body.

If the employee disagrees with the decision, the employer must notify the employee within 72 hours after receiving the final decision from the inspection center regarding the employee’s work permit.

It is important that employers pay attention to these new provisions as a breach of the law opens the door for the employee or job applicant to take action to enforce these provisions. If the employee or petitioner is successful in court, they will be awarded actual damages as well as costs as well as additional financial penalties for willful and knowing violations.