An amendment to the Illinois Right to Privacy in the Workplace Act going into effect on Jan. 1, 2025, imposes many new obligations on employers regarding the use of E-Verify – some that go beyond federal E-Verify requirements. The Illinois Department of Labor (IDOL) has published guidance on the law that also clarifies that the law does not ban the use of E-Verify in Illinois. The new law includes strict deadlines for employer notifications and attestations, among other requirements.

In addition to clarifying that E-Verify can be used in Illinois, the new guidance:

• Urges employers using E-Verify to familiarize themselves with information on the IDOL website about the accuracy of E-Verify;
• Prohibits misuse of E-Verify, including for pre-screening;
• Encourages employers to review and understand their legal responsibilities regarding posting and notice requirements;
• Reminds employers that employees may file complaints for alleged violations with IDOL; and
• Explains that any adverse action against an employee or applicant who files a complaint under the Right to Privacy Act is prohibited.

Illinois employers will violate state law by:

• Failing to display E-Verify notices supplied by the federal and Illinois state governments;
• Failing to have all employees who use the system participate in the required computer-based training;
• Failing to prevent employees from circumventing the training requirement;
• Misusing E-Verify in any way including using the system for pre-screening or screening current employees;
• Failing to safeguard the information in the system and preventing unauthorized access; and
• Failing to follow the notification and attestation requirements in the law.

The law imposes on employers notification and attestation requirements that are particularly detailed.

Here are just some examples:

• Upon initial enrollment in E-Verify or within 30 days of the effective date of the amendment (Jan. 1, 2025), the employer must file an attestation that they have received all the training materials and that they will do the training, post the required notices, and retain all certifications of completion of training for possible inspection.
• If the employer contends there is a discrepancy in the employment verification documents provided by an employee, the employer must explain the specific deficiency to the employee, provide the employee with instructions as to how to correct the deficiency, explain that the employee has a right to representation, and, upon request, provide the original document that provides the basis for the deficiency within 7 business days.
• When an employer receives a notification of a discrepancy from a state or federal agency:
  • Employer cannot take any adverse action including re-verification based on the notification.
  • Employer must provide notification to the employee not more than 5 business days after receipt of notification.
  • Employer must provide an explanation of discrepancy, time period to contest, and provide the original notice within 7 business days.
  • Employer must provide notification to employee’s representative within same time frame.
  • Notification should be by hand if possible, but if not possible, notification must be by mail and email.
• When an employer receives notice of an upcoming inspection by an agency of I-9 forms or other related documents:
  • Employer must provide notice to all employees in all relevant languages within 72 hours of receipt of the notice.
  • Employer must also provide written notice to employees’ representatives, when applicable.
  • Notice should include details regarding the conducting agency, the date the notice was received, the nature of the inspection and a copy of the notice. (IDOL is expected to prepare a template for this notification.)
• If during an inspection, a problem is uncovered about a specific employee:
  • Employer must provide written notice to the employee and employee’s representative within 5 business days.
  • Notice should be provided in person if possible or by mail and email.
  • Notice should include a full explanation of what was found, the time period for the employee to notify the employer if they plan to contest the finding, the time and date of any upcoming meetings on the topic, and the employee’s right to representation.
  • If the employee contests the determination, the employer must notify the employee within 72 hours after receipt of a final determination and provide the original notice within 7 business days.