At a Glance

Illinois employers who are not required to use E-Verify may want to think twice about doing so, at least for now. Beginning on Jan. 1, 2025, when an amendment to the Illinois Right to Privacy in the Workplace Act (the Act) takes effect, Illinois employers may no longer be permitted to voluntarily use employment eligibility verification systems – e.g.,  E-Verify –  to confirm the I-9 authentication process, unless required by federal law. All employers, regardless of their use of E-Verify, will be required to comply with certain additional notification requirements in connection with employment eligibility verification.

Here is a brief overview on E-Verify and Illinois’ upcoming restrictions on its use.

Background: What is E-Verify?

E-Verify is a federal electronic program that some employers use to verify that their employees are authorized to work in the United States. Notably, all employers in the United States are federally required to verify the identity and work authorization of each person they hire by completing and retaining a Form I-9 Employment Eligibility Verification. Most Illinois employers, however, are not required to use E-Verify in addition to this process. Indeed, other than employers who are federal contractors or subcontractors or who fall into a few other discrete categories, E-Verify is a voluntary program that provides additional confirmation of an employee’s work authorization.

Illinois’ Purported Ban on Employers’ Voluntary Use of  E-Verify

The amended Act contains two provisions that, taken together, appear to effectively ban the use of E-Verify in Illinois:

• Section 12(a) reads, “Nothing in this Act shall be construed to require an employer to enroll in any Electronic Employment Verification System, including the E-Verify program . . . beyond those obligations that have been imposed upon them by federal law.”
• Section 13(b) asserts that “An employer shall not impose work authorization verification or re-verification requirements greater than those required by federal law.”

These provisions seem to state that Illinois employers who are not federally mandated to enroll in E-Verify are not required to — and thus, “shall not” — do so.

Of course, some ambiguity exists as to whether employers are outright banned from voluntarily participating in E-Verify. And the Illinois Department of Labor may yet issue guidance regarding how it will interpret the new law. In the meantime, Illinois employers should consider whether they wish to assume the risk of finding out, given that a violation of the amendments to the Act comes with increased penalties (as described below).

Notably, if the amended Act is an attempt to prohibit the use of E-Verify, it would not be Illinois’ first effort to do so. In 2007, the Illinois legislature tried to prohibit the use of E-Verify on the basis that it may be overinclusive, providing inaccurate information regarding work authorization to the detriment of would-be employees. In short order, however, the 2007 law was struck down by a federal court as an unconstitutional violation of the Supremacy Clause. If the most recent amendments to the Act are considered a total ban of all voluntary use of E-Verify, on their face or in practice, similar constitutional challenges may be asserted and prevail. However, to date, no such challenges have been asserted.

Illinois’ Other New Restrictions, Requirements, and Penalties Relating to Employee Work Authorization — Applicable Regardless of Whether an Employer Uses E-Verify

Notice of Investigation

Multiple governmental agencies are empowered to inspect an employer’s I-9 employment eligibility verification forms — including the federal Department of Homeland Security, the Immigration and Employee Rights Section of the Department of Justice, and the Department of Labor. The amended Act also imposes additional notice requirements when any federal or state agency inspects an employer’s I-9 forms. When an inspecting agency determines that an employee’s authorization documentation does not establish that the employee is authorized to work in the United States, the employer must provide a written notice to the employee within five business days. If the employee contests the inspecting agency’s determination, the employer is required to notify the employee within 72 hours after receipt of the agency’s final determination.

Employers must also post a notice of an inspection within 72 hours of receiving the notice of inspection from the inspecting agency.

Notice of Agency-Determined Authorization Discrepancy

When an employer receives notice from a federal or state agency of a discrepancy relating to a work authorization, the employer must inform the employee of the discrepancy and of the employee’s rights as soon as practicable and no more than five business days after receiving the agency’s notice. Should the employee request the original notice provided by the agency, the employer must provide a copy of it, subject to redaction requirements, within seven business days of the request.

An employer cannot take any adverse action against an employee — including requiring re-verification — based solely on receiving an agency’s work authorization discrepancy notice.

Notice of Employer-Determined Authorization Discrepancy

Should an employer identify a discrepancy in the work authorization of an employee, the employer must provide the employee with the documents it deems deficient and the reason for the employer’s deficiency determination. Upon request, the employer shall supply the employee with the documents forming the basis for the deficiency determination within seven business days. The employer must also instruct the employee how to remedy the alleged deficiencies, notify the employee of their right to representation, and explain other employee rights related to the employer’s deficiency determination.

Increased Penalties

If an employer willfully and knowingly violates the provisions described above, it faces a penalty between $2,000 and $5,000 for its first violation. Penalties for subsequent willful and knowing violations range between $5,000 and $10,000 per violation.

Next Steps

Illinois employers that voluntarily use employment eligibility verification systems such as E-Verify should be aware of the amendments to the Act and the increased potential risk associated with voluntarily using E-Verify after Jan. 1, 2025. All Illinois employers, regardless of how they verify work authorization, should note the changing notification requirements described above and when they apply.

Please reach out to any member of Taft’s Employment group to navigate these new requirements.