Employers May Use E-Verify, Under Certain Conditions

Earlier this month, after much anticipation and confusion, the Illinois Department of Labor (IDOL) issued some much-needed guidance on the fate of E-Verify in Illinois. The IDOL, through FAQs on its website, has clarified that Illinois is not banning the voluntary use of E-Verify.

Put plainly, IDOL says employers can opt to use E-Verify even if not required to do so under federal law, so long as they comply with other provisions of the Right to Privacy in the Workplace Act (the Act).

By publishing this guidance, IDOL has dispelled the confusion caused by some ambiguities in the amendments to the Act. Those amendments (which Taft commented on here: Is Illinois Gearing Up to Ban E-Verify? Taft Explains) appeared to put the voluntary use of E-Verify on the chopping block in the state.

FAQs do not provide the same level of assurance as an administrative rule regarding the legal requirements an employer must follow. Additionally, these FAQs still technically respond to the current version of the Act and not necessarily to the amended version taking effect on Jan. 1. Even so, the FAQs signal how IDOL will interpret the Act for enforcement purposes.

Notice Requirements Related to Workplace Authorization

• Posters – Employers that use E-Verify — whether because they are required to do so or because they opt into the program — must post IDOL’s Right to Privacy in the Workplace/E-Verify poster, along with this E-Verify Participation poster, and this poster produced by the United States Department of Justice. The posters must be displayed in both English and Spanish.
• Employer-Found Discrepancy – Should an employer find a discrepancy in an employee’s employment verification information, the employer must provide the employee with: (1) the document that the employer deems to be deficient and the reason why; (2) upon request by the employee, the original document forming the basis for the employer’s contention of deficiency within seven business days; (3) instructions on how the employee can correct the allegedly deficient documents; (4) an explanation of the employee’s right to have representation present during related meetings, discussions, or proceedings, if applicable; (5) an explanation of any other employee rights.
• Agency-Notice of Discrepancy – If an employer receives notice from a federal or state agency of a work-authorization discrepancy, the employer must (1) not take any adverse action, including re-verification, against an employee based solely on receiving the agency-notice, and (2) 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. The notice to the employee must include details such as an explanation of the agency’s notice and the deadline to contest the determination. 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.
• I-9 Inspections – Within 72 hours after receiving notice from an inspecting agency — such as ICE, the U.S. Customs and Border Protection, or any other federal agency — of an inspection of the employer’s I-9 Employment Eligibility Verification forms or other employment records, an employer must provide notice of the inspection to each current employee. The posted notice must include the name of the inspecting entity, the nature of the inspection, the date of the notice, and a copy of the notice.

Some of the preceding notification requirements may be subject to legal challenges as either (i) unduly burdening employers’ use of E-Verify, which employers are entitled to use under federal law, or (ii) interfering with employers’ obligations under federal law in connection with the I-9 forms that the employers must maintain. However, until such potential challenges are asserted and adjudicated by the courts, Illinois employers will be required to comply with these new notification requirements under the amendments to the Act.

Next Steps and Upcoming CLE

To learn more about this and other changes across the Illinois employment landscape, please join Taft for an upcoming Illinois Employment CLE taking place on the morning of Dec. 3, 2024, at Taft’s Chicago office and virtually. The link to register for the in-person program can be found here, while the link to register for the virtual program can be found here. Pending one hour of Illinois CLE credit and SHRM credit.

 Contact a member of the Taft Employment and Labor Relations group with any questions regarding the CLE or compliance with this Act.