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eTrends - IL Imposes Additional Obligations on Employers Using E-Verify

03.11.2010

The Illinois Right to Privacy in the Workplace Act was amended recently, placing significant new obligations on employers using the federal E-Verify program to confirm the work authorization status of their employees.  The new state law goes beyond the federal requirements in some areas.

The law, effective January 1, 2010, requires employers to sign a sworn attestation at the time of initial enrollment in E-Verify, or by the January 1 effective date if they currently are enrolled in the program. Employers using a Designated Agent approved by the Department of Homeland Security have until February 28, 2010 to complete and maintain the form.  The Illinois Department of Labor (IDOL) has prepared the E-Verify Employer Attestation form, which is available at the agency’s website.

Through the attestation, employers must affirm (1) that the employer and all of its employees administering the E-Verify program have received the Basic Pilot or E-Verify training materials from the Department of Homeland Security (DHS) and completed the online Computer Based Tutorial (CBT); (2) that the employer has posted prominently and in a location clearly visible to prospective employees the required notice from DHS indicating its enrollment in the Basic Pilot or E-Verify program; (3) that the employer maintains the original signed copy of the attestation, and confirmation of completion of the CBT and will make them available for inspection and copying upon request by IDOL; and (4) that the employer has posted prominently and in a location clearly visible to prospective employees the anti-discrimination notice issued by the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).

Additionally, the law prohibits the following: (1) failing to display properly the DHS and OSC notices; (2) allowing an employee who has not completed the CBT to use the E-Verify system; (3) allowing employees who have not completed the CBT to use the user identification or password of an employee who has completed the training; (4) using E-Verify to pre-screen an applicant prior to hiring; (5) terminating or taking adverse action against an employee prior to the employee receiving a non-confirmation notice from the Social Security Administration or the DHS; (6) failing to notify the employee in writing of the employer’s receipt of a tentative non-confirmation, and of the employee’s right to contest it; and (7) failing to safeguard information contained in the E-Verify database, and the means to access it (e.g., passwords, etc.).  Finally, the act prohibits both an individual from posing falsely as an employer to enroll in the E-Verify system, and an employer from using the system to access information on someone who is not their employee.

The prohibitions above are already established under the federal E-Verify law.  Knowing and willful violation of them may result in significant fines to the company and petty offense charges to its executives and HR managers. Aggrieved individuals must first seek redress with IDOL before pursuing a private right of action in state court.

Please contact Kim Korando with any questions.

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  • Alicia A. Gilleskie agilleskie@smithlaw.com
  • Frederick R. Zufelt fzufelt@smithlaw.com

Smith Anderson publishes eTrends periodically as a service to clients and friends. The purpose of this eTrends is to provide general information about a significant legal development in the field of employment law. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader’s particular circumstances.

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Jamie Greene
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