Illinois General Assembly - Full Text of SB0508
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Full Text of SB0508  103rd General Assembly



SB0508 EngrossedLRB103 02960 SPS 47966 b

1    AN ACT concerning employment.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Right to Privacy in the Workplace Act is
5amended by changing Sections 12 and 15 and adding Section 13 as
7    (820 ILCS 55/12)
8    Sec. 12. Use of Employment Eligibility Verification
10    (a) Prior to enrolling choosing to voluntarily enroll in
11any Electronic Employment Verification System, including the
12E-Verify program and the Basic Pilot program, as authorized by
138 U.S.C. 1324a, Notes, Pilot Programs for Employment
14Eligibility Confirmation (enacted by P.L. 104-208, div. C,
15title IV, subtitle A), employers are urged to consult the
16Illinois Department of Labor's website for current information
17on the accuracy of E-Verify and to review and understand an
18employer's legal responsibilities relating to the use of the
19voluntary E-Verify program. Nothing in this Act shall be
20construed to require an employer to enroll in any Electronic
21Employment Verification System, including the E-Verify program
22and the Basic Pilot program, as authorized by 8 U.S.C. 1324a,
23Notes, Pilot Programs for Employment Eligibility Confirmation



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1(enacted by P.L. 104-208, div. C, title IV, subtitle A) beyond
2those obligations that have been imposed upon them by federal
4    (a-1) The Illinois Department of Labor (IDOL) shall post
5on its website information or links to information from the
6United States Government Accountability Office, Westat, or a
7similar reliable source independent of the Department of
8Homeland Security regarding: (1) the accuracy of the E-Verify
9databases; (2) the approximate financial burden and
10expenditure of time that use of E-Verify requires from
11employers; and (3) an overview of an employer's
12responsibilities under federal and state law relating to the
13use of E-Verify.
14    (b) Upon initial enrollment in an Employment Eligibility
15Verification System or within 30 days after the effective date
16of this amendatory Act of the 96th General Assembly, an
17employer enrolled in E-Verify or any other Employment
18Eligibility Verification System must attest, under penalty of
19perjury, on a form prescribed by the IDOL available on the IDOL
21        (1) that the employer has received the Basic Pilot or
22    E-Verify training materials from the Department of
23    Homeland Security (DHS), and that all employees who will
24    administer the program have completed the Basic Pilot or
25    E-Verify Computer Based Tutorial (CBT); and
26        (2) that the employer has posted the notice from DHS



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1    indicating that the employer is enrolled in the Basic
2    Pilot or E-Verify program and the anti-discrimination
3    notice issued by the Office of Special Counsel for
4    Immigration-Related Unfair Employment Practices (OSC),
5    Civil Rights Division, U.S. Department of Justice in a
6    prominent place that is clearly visible to both
7    prospective and current employees. The employer must
8    maintain the signed original of the attestation form
9    prescribed by the IDOL, as well as all CBT certificates of
10    completion and make them available for inspection or
11    copying by the IDOL at any reasonable time.
12    (c) It is a violation of this Act for an employer enrolled
13in an Employment Eligibility Verification System, including
14the E-Verify program and the Basic Pilot program:
15        (1) to fail to display the notices supplied by DHS and
16    OSC in a prominent place that is clearly visible to both
17    prospective and current employees;
18        (2) to allow any employee to use an Employment
19    Eligibility Verification System prior to having completed
20    CBT;
21        (3) to fail to take reasonable steps to prevent an
22    employee from circumventing the requirement to complete
23    the CBT by assuming another employee's E-Verify or Basic
24    Pilot user identification or password;
25        (4) to use the Employment Eligibility Verification
26    System to verify the employment eligibility of job



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1    applicants prior to hiring or to otherwise use the
2    Employment Eligibility Verification System to screen
3    individuals prior to hiring and prior to the completion of
4    a Form I-9;
5        (5) to terminate an employee or take any other adverse
6    employment action against an individual prior to receiving
7    a final nonconfirmation notice from the Social Security
8    Administration or the Department of Homeland Security;
9        (6) to fail to notify an individual, in writing, of
10    the employer's receipt of a tentative nonconfirmation
11    notice, of the individual's right to contest the tentative
12    nonconfirmation notice, and of the contact information for
13    the relevant government agency or agencies that the
14    individual must contact to resolve the tentative
15    nonconfirmation notice;
16        (7) to fail to safeguard the information contained in
17    the Employment Eligibility Verification System, and the
18    means of access to the system (such as passwords and other
19    privacy protections). An employer shall ensure that the
20    System is not used for any purpose other than employment
21    verification of newly hired employees and shall ensure
22    that the information contained in the System and the means
23    of access to the System are not disseminated to any person
24    other than employees who need such information and access
25    to perform the employer's employment verification
26    responsibilities.



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1    (c-1) Any claim that an employer refused to hire,
2segregated, or acted with respect to recruitment, hiring,
3promotion, renewal or employment, selection for training or
4apprenticeship, discharge, discipline, tenure or terms,
5privileges, or conditions of employment without following the
6procedures of the Employment Eligibility Verification System,
7including the Basic Pilot and E-Verify programs, may be
8brought under paragraph (G)(2) of Section 2-102 of the
9Illinois Human Rights Act.
10    (c-2) It is a violation of this Section for an individual
11to falsely pose as an employer in order to enroll in an
12Employment Eligibility Verification System or for an employer
13to use an Employment Eligibility Verification System to access
14information regarding an individual who is not an employee of
15the employer.
16    (d) Preemption. Neither the State nor any of its political
17subdivisions, nor any unit of local government, including a
18home rule unit, may require any employer to use an Employment
19Eligibility Verification System, including under the following
21        (1) as a condition of receiving a government contract;
22        (2) as a condition of receiving a business license; or
23        (3) as penalty for violating licensing or other
24    similar laws.
25    This subsection (d) is a denial and limitation of home
26rule powers and functions under subsection (h) of Section 6 of



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1Article VII of the Illinois Constitution.
2(Source: P.A. 95-138, eff. 1-1-08; 96-623, eff. 1-1-10;
396-1000, eff. 7-2-10.)
4    (820 ILCS 55/13 new)
5    Sec. 13. Restrictions on the use of Employment Eligibility
6Verification Systems.
7    (a) As used in this Section:
8    "Employee's authorized representative" means an exclusive
9collective bargaining representative.
10    "Inspecting entity" means the U.S. Immigration and Customs
11Enforcement, United States Customs and Border Protection, or
12any other federal entity enforcing civil immigration
13violations of an employer's I-9 Employment Eligibility
14Verification forms.
15    (b) An employer shall not impose work authorization
16verification or re-verification requirements greater than
17those required by federal law.
18    (c) If an employer contends that there is a discrepancy in
19an employee's employment verification information, the
20employer must provide the employee with:
21        (1) The specific document or documents, if made
22    available to the employer, that the employer deems to be
23    deficient and the reason why the document or documents are
24    deficient. Upon request by the employee or the employee's
25    authorized representative, the employer shall give to the



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1    employee the original document forming the basis for the
2    employer's contention of deficiency within 7 business
3    days.
4        (2) Instructions on how the employee can correct the
5    alleged deficient documents if required to do so by law.
6        (3) An explanation of the employee's right to have
7    representation present during related meetings,
8    discussions, or proceedings with the employer, if allowed
9    by a memorandum of understanding concerning the federal
10    E-Verify system.
11        (4) An explanation of any other rights that the
12    employee may have in connection with the employer's
13    contention.
14    (d) When an employer receives notification from any
15federal or State agency, including, but not limited to, the
16Social Security Administration or the Internal Revenue
17Service, of a discrepancy as it relates to work authorization,
18the following rights and protections are granted to the
20        (1) The employer must not take any adverse action
21    against the employee, including re-verification, based on
22    the receipt of the notification.
23        (2) The employer must provide a notice to the employee
24    and, if allowed by a memorandum of understanding
25    concerning the federal E-Verify system, to the employee's
26    authorized representative, if any, as soon as practicable,



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1    but not more than 5 business days after the date of receipt
2    of the notification, unless a shorter timeline is provided
3    for under federal law or a collective bargaining
4    agreement. The notice to the employee shall include, but
5    not be limited to: (i) an explanation that the federal or
6    State agency has notified the employer that the employee's
7    work authorization documents presented by the employee do
8    not appear to be valid or reasonably relate to the
9    employee; and (ii) the time period the employee has to
10    contest the federal or State agency's determination. The
11    employer shall notify the employee in person and deliver
12    the notification by hand, if possible. If hand delivery is
13    not possible, then the employer shall notify the employee
14    by mail and email, if the email address of the employee is
15    known, and shall notify the employee's authorized
16    representative. Upon request by the employee or the
17    employee's authorized representative, the employer shall
18    give to the employee the original notice from the federal
19    or State agency, including, but not limited to, the Social
20    Security Administration or the Internal Revenue Service,
21    within 7 business days. This original notice shall be
22    redacted in compliance with State and federal privacy laws
23    and shall relate only to the employee receiving the
24    notification.
25        (3) The employee may have a representative of the
26    employee's choosing in any meetings, discussions, or



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1    proceedings with the employer.
2     The procedures described in this subsection do not apply
3to inspections of an employer's I-9 Employment Verification
4Forms by an inspecting entity or any relevant procedure
5otherwise described in subsection (g).
6    (e) Except as otherwise required by federal law, an
7employer shall provide a notice to each current employee, by
8posting in English and in any language commonly used in the
9workplace, of any inspections of I-9 Employment Eligibility
10Verification forms or other employment records conducted by
11the inspecting entity within 72 hours after receiving notice
12of the inspection. Written notice shall also be given within
1372 hours to the employee's authorized representative, if any.
14The posted notice shall contain the following information:
15        (1) the name of the entity conducting the inspections
16    of I-9 Employment Eligibility Verification forms or other
17    employment records;
18        (2) the date that the employer received notice of the
19    inspection;
20        (3) the nature of the inspection to the extent known
21    by the employer; and
22        (4) a copy of the notice received by the employer.
23    An employer, upon reasonable request, shall provide an
24employee a copy of the Notice of Inspection of I-9 Employment
25Eligibility Verification forms.
26    (f) On or before 6 months after the effective date of this



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1amendatory Act of the 103rd General Assembly, the Department
2shall develop a template posting that employers may use to
3comply with the requirements of subsection (e) to inform
4employees of a notice of inspection to be conducted of I-9
5Employment Eligibility Verification forms or other employment
6records conducted by the inspecting entity. The Department
7shall make the template available on its website so that it is
8accessible to any employer.
9    (g) Except as otherwise required by federal law, if during
10an inspection of the employer's I-9 Employment Eligibility
11Verification forms by an inspecting entity, the inspecting
12entity makes a determination that the employee's work
13authorization documents do not establish that the employee is
14authorized to work in the United States and provide the
15employer with notice of that determination, the employer shall
16provide a written notice as set forth in this subsection to the
17employee within 5 business days, unless a shorter timeline is
18provided for under federal law or a collective bargaining
19agreement. The employer's notice to the employee shall relate
20to the employee only. The employer shall notify the employee
21in person and deliver the notification by hand, if possible.
22If hand delivery is not possible, then the employer shall
23notify the employee by mail and email, if the email address of
24the employee is known, and shall notify the employee's
25authorized representative. The employer's notice to the
26employee shall contain the following information:



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1        (1) an explanation that the inspecting entity has
2    determined that the employee's work authorization
3    documents presented by the employee do not appear to be
4    valid or reasonably relate to the employee;
5        (2) the time period for the employee to notify the
6    employer whether the employee is contesting or not
7    contesting the determination by the inspecting entity;
8        (3) if known by the employer, the time and date of any
9    meeting with the employer and employee or with the
10    inspecting entity and employee related to the correction
11    of the inspecting entity's determination that the
12    employee's work authorization documents presented by the
13    employee do not appear to be valid or reasonably relate to
14    the employee; and
15        (4) notice that the employee has the right to
16    representation during any meeting scheduled with the
17    employer and the inspecting entity.
18    If the employee contests the inspecting entity's
19determination, the employer will notify the employee within 72
20hours after receipt of any final determination by the
21inspecting entity related to the employee's work authorization
22status. Upon request by the employee or the employee's
23authorized representative, the employer shall give the
24employee the original notice from the inspecting entity within
257 business days. This original notice shall be redacted in
26compliance with State and federal privacy laws and shall



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1relate only to the employee receiving the notification.
2    (h) This Section does not require a penalty to be imposed
3upon an employer or person who fails to provide notice to an
4employee at the express and specific direction or request of
5the federal government. In determining the amount of the
6penalty, the appropriateness of the penalty to the size of the
7business of the employer charged and the gravity of the
8violation shall be considered. The penalty may be recovered in
9a civil action brought by the Director in any circuit court.
10Upon request by the employee or the employee's authorized
11representative, the employer shall give the employee the
12original notice from the inspecting entity within 7 business
14    (i) This Section applies to public and private employers.
15    (j) Nothing in this Section shall be interpreted,
16construed, or applied to restrict or limit an employer's
17compliance with a memorandum of understanding concerning the
18use of the federal E-Verify system.
19    (820 ILCS 55/15)  (from Ch. 48, par. 2865)
20    Sec. 15. Administration and enforcement.
21    (a) The Director of Labor or his authorized representative
22shall administer and enforce the provisions of this Act. The
23Director of Labor may issue rules and regulations necessary to
24administer and enforce the provisions of this Act.
25    (b) If an employee or applicant for employment alleges



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1that he or she has been denied his or her rights under this
2Act, he or she may file a complaint with the Department of
3Labor. The Department shall investigate the complaint and
4shall have authority to request the issuance of a search
5warrant or subpoena to inspect the files of the employer or
6prospective employer, if necessary. The Department shall
7attempt to resolve the complaint by conference, conciliation,
8or persuasion. If the complaint is not so resolved and the
9Department finds the employer or prospective employer has
10violated the Act, the Department may commence an action in the
11circuit court to enforce the provisions of this Act including
12an action to compel compliance. The circuit court for the
13county in which the complainant resides or in which the
14complainant is employed shall have jurisdiction in such
16    (c) If an employer or prospective employer violates this
17Act, an employee or applicant for employment may commence an
18action in the circuit court to enforce the provisions of this
19Act, including actions to compel compliance, where efforts to
20resolve the employee's or applicant for employment's complaint
21concerning the violation by conference, conciliation or
22persuasion under subsection (b) have failed and the Department
23has not commenced an action in circuit court to redress the
24violation. The circuit court for the county in which the
25complainant resides or in which the complainant is employed
26shall have jurisdiction in such actions.



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1    (d) Failure to comply with an order of the court may be
2punished as contempt. In addition, the court shall award an
3employee or applicant for employment prevailing in an action
4under this Act the following damages:
5        (1) Actual damages plus costs.
6        (2) For a willful and knowing violation of this Act,
7    $200 plus costs, reasonable attorney's fees, and actual
8    damages.
9        (3) For a willful and knowing violation of Section
10    12(c) or Section 12(c-2) of this Act, $500 per affected
11    employee plus costs, reasonable attorney's attorneys’
12    fees, and actual damages.
13        (4) For a willful and knowing violation of Section 13,
14    a civil penalty of a minimum of $2,000 up to a maximum of
15    $5,000 for a first violation and a civil penalty of a
16    minimum of $5,000 up to a maximum of $10,000 for each
17    subsequent violation per affected employee plus costs,
18    reasonable attorney's fees, and actual damages.
19    (e) Any employer or prospective employer or his agent who
20violates the provisions of this Act is guilty of a petty
22    (f) Any employer or prospective employer, or the officer
23or agent of any employer or prospective employer, who
24discharges or in any other manner discriminates against any
25employee or applicant for employment because that employee or
26applicant for employment has made a complaint to his employer,



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1or to the Director or his authorized representative, or
2because that employee or applicant for employment has caused
3to be instituted or is about to cause to be instituted any
4proceeding under or related to this Act, or because that
5employee or applicant for employment has testified or is about
6to testify in an investigation or proceeding under this Act,
7is guilty of a petty offense.
8(Source: P.A. 96-623, eff. 1-1-10.)