Illinois Complicates E-Verify and I-9 Compliance for Employers

The state of Illinois has enacted Public Act 103-0879 (SB0508), which will take effect on January 1, 2025.  

The Act, as previously amended, had already placed several requirements on Illinois E-Verify employers beyond those required under the federal E-Verify program rules. The new amendments will impact all employers in Illinois and are meant to increase workers’ rights in connection with employment verification.  

The Act will require employee notification when questions arise regarding an employee’s eligibility to work or the validity of their documentation. The Act will also require employers to promptly notify the entire workforce in the event of an I-9 audit by the federal government. Illinois also will impose penalties for those employers found to have violated these requirements. 

Existing Requirements Under the Illinois Act 

Upon enrollment in the program, or within 30 days of the effective date for the Illinois Act for existing E-Verify users, employers must complete and maintain an Illinois Department of Labor (IDOL) form attesting, under penalty of perjury, that:  

• the employer had received the E-Verify training materials from DHS; 

• all employees who would administer the program have completed the DHS E-Verify computer-based tutorial training; and  

• the mandatory DHS E-Verify and Department of Justice antidiscrimination posters have been posted in a prominent location visible to both existing and prospective employees.   

Employers must retain the original signed form, along with certificates of completion for the E-Verify training tutorial for all employees administering the program, and must make them available for inspection by IDOL. 

In addition, the statute provides that it is a violation of the Illinois Act for an employer to: 

• fail to display the DHS and IER Notices required by E-Verify; 

• allow an employee to use E-Verify without completing the required online tutorial; 

• fail to take reasonable steps to prevent an employee from circumventing the requirement to complete the tutorial by using another employee’s log-in information; 

• use E-Verify to prescreen candidates prior to hiring or completion of the I-9 form; 

• terminate an employee or take any other adverse action prior to receiving a final non-confirmation notice from the E-Verify system; 

• fail to notify an employee in writing, of a tentative non-confirmation notice, the right to contest the tentative non-confirmation, and the contact information for the relevant agency that the employee must contact to resolve the TNC notice; and 

• fail to safeguard the information in the E-Verify system and means of access to the system such as usernames and passwords. 

New Requirements Taking Effect on January 1, 2025 

The new amendments taking effect at the beginning of the new year place new responsibilities on employers operating in Illinois, including imposing new employee notification requirements, and provides for additional potential penalties for employers failing to comply. Several of these notification requirements will apply to all employers, not just those enrolled in the E-Verify program. 

A new section 13 has been added to the Illinois Right to Privacy in the Workplace Act which provides the following new requirements. Employers are prohibited from imposing work authorization or reverification requirements greater than those required under federal law. 

Discrepancy with Employee Information

• If an employer believes there is a discrepancy in an employee’s employment verification information, the employer must provide the employee with:  

• the specific document or documents the employer deems insufficient, the reasons why the employer deems the documentation insufficient and, if requested by the employee or his or her authorized representative, the original document forming the basis for the insufficiency, within seven business days; 

• Instructions on how the employee can correct the deficient document if required to do so by law; 

• An explanation of an employee’s right to have representation present during related meetings or discussions with the employer; and  

• An explanation of any other rights the employee might have. 

Notice from State or Federal Agency

• When an employer receives notification from any federal or state agency, including (but not limited to) the Social Security Administration or the IRS about a discrepancy regarding an employee’s employment verification information, the employee is provided the following rights: 

• The employer must not take any adverse action against the employee, including reverification, based upon receipt of the notification; 

• The employer must provide notice to the employee (and potentially the employee’s collective bargaining representative) as soon as practicable but no later than five days after receipt; 

• The notice to the employee must include at a minimum an explanation that the federal or state agency has notified the employer that the employee’s work authorization documents do not appear to be valid or to relate to the employee, and the timeframe the employee has to contest the determination with the federal agency, if possible; 

• The employer must notify the employee in person and deliver the notification by hand, if possible. If hand delivery is not possible, the employer must notify the employee by mail and email, if the employee’s email address is known, and shall notify the employee’s collective bargaining representative, if any. 

• Upon request, the employer shall provide the employee with the original notice from the state or federal agency regarding the discrepancy within seven business days. 

• The employee may have a representative of his or her choice present for any meetings or discussion regarding the notification. 

Federal I-9 Inspection

• In the event of a federal I-9 inspection (typically carried out by U.S. Immigration and Customs Enforcement) employers must notify each employee by posting notice of the inspection of I-9 forms and other employment records in English and in any language commonly used in the workplace within 72 hours of the employer receiving notice of the Inspection. 

• The posted notice must provide the name of the entity conducting the inspection of I-9 forms or other employment records, the date the employer received notice of the inspection, and the nature of the inspection to the extent known by the employer, and a copy of the notice received by the employer. 

• Upon reasonable request, the employer must provide an employee a copy of the Notice of Inspection. 

• The IDOL is directed to develop a template posting that employers can use to satisfy the requirement within six months. 

Notice of Suspect Documents

• During the course of a federal I-9 inspection, if the inspecting agency notifies the employer that the documents provided by one or more employees do not establish that the employee(s) are authorized to work in the U.S., known as a Notice of Suspect Document, the employer must provide written notice to the employee within five business days unless a shorter time period is provided for under federal law or a collective bargaining agreement.  

• The notice must relate to the employee only; 

• The employer must notify the employee in person and deliver the notification by hand if possible.  If notice by hand is not possible then the employer shall notify the employee by mail and email, if the email address of the employee is known; 

• The notice must provide, (1) an explanation that the inspecting agency has determined that the employee’s work authorization documents do not appear to be valid or reasonably relate to the employee, (2) the time period for the employee to notify the employer whether they are contesting the determination by the inspecting agency, (3) if known by the employer, the date and time of any meeting with the employer and employee or with the inspecting agency and the employee regarding the agency’s determination and (4) notice that the employee has the right representation during any meeting scheduled with the employer and the inspecting agency. 

• If the employee contests the inspecting agency’s determination, the employer must also notify the employee within 72 hours after receipt of any final determination by the inspecting agency. 

The Illinois Act will be administered and enforced by the Director of the Illinois Department of Labor. Employees or applicants for employment who believe their rights under the Act have been violated can file a complaint with the IDOL.   

The department will investigate complaints and has the authority to issue search warrants and subpoenas for employer records. Employees can also commence actions in the circuit court to enforce the Illinois Act’s requirements where the IDOL has not taken action to address the violation.   

Where a violation is found, the circuit court can impose fines per each employee affected, plus costs, reasonable attorney’s fees and actual damages.   

For willful violations of the newly enacted section 13, which takes effect on January 1, the court can impose civil penalties ranging from $2,000 to $5,000 for a first violation per affected employee. 

Looking Ahead 

The new Illinois amendments will further complicate employer decisions when navigating potentially complicated questions about the validity of employee documentation and employment eligibility. Employers will need to incorporate these new Illinois requirements into their decision-making process when resolving these issues in the future.   

The Illinois Department of Labor has published an FAQ on its website regarding the Act, but it lacks detail, and many questions remain as to the precise scope of the new requirements and how they will be enforced going forward.   

With the expectation that the incoming administration will increase federal worksite enforcement efforts, Illinois employers who are subject to I-9 audits will need to be aware of these state requirements. 

Need to Know More? 

For further information and assistance with questions regarding compliance with the Illinois statute or I-9 compliance in general, please contact Partner Daniel Brown at [email protected].  

This blog was published on November 14, 2024, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, X, Facebook and Instagram.