|
| Public Act 103-0879
|
| SB0508 Enrolled | LRB103 02960 SPS 47966 b |
|
|
|
AN ACT concerning employment.
|
Be it enacted by the People of the State of Illinois, |
represented in the General Assembly:
|
Section 5. The Right to Privacy in the Workplace Act is |
amended by changing Sections 12 and 15 and adding Section 13 as |
follows:
|
(820 ILCS 55/12) |
Sec. 12. Use of Employment Eligibility Verification |
Systems. |
(a) Prior to enrolling choosing to voluntarily enroll in |
any Electronic Employment Verification System, including the |
E-Verify program and the Basic Pilot program, as authorized by |
8 U.S.C. 1324a, Notes, Pilot Programs for Employment |
Eligibility Confirmation (enacted by P.L. 104-208, div. C, |
title IV, subtitle A), employers are urged to consult the |
Illinois Department of Labor's website for current information |
on the accuracy of E-Verify and to review and understand an |
employer's legal responsibilities relating to the use of the |
voluntary E-Verify program. Nothing in this Act shall be |
construed to require an employer to enroll in any Electronic |
Employment Verification System, including the E-Verify program |
and the Basic Pilot program, as authorized by 8 U.S.C. 1324a, |
Notes, Pilot Programs for Employment Eligibility Confirmation |
|
(enacted by P.L. 104-208, div. C, title IV, subtitle A) beyond |
those obligations that have been imposed upon them by federal |
law. |
(a-1) The Illinois Department of Labor (IDOL) shall post |
on its website information or links to information from the |
United States Government Accountability Office, Westat, or a |
similar reliable source independent of the Department of |
Homeland Security regarding: (1) the accuracy of the E-Verify |
databases; (2) the approximate financial burden and |
expenditure of time that use of E-Verify requires from |
employers; and (3) an overview of an employer's |
responsibilities under federal and state law relating to the |
use of E-Verify. |
(b) Upon initial enrollment in an Employment Eligibility |
Verification System or within 30 days after the effective date |
of this amendatory Act of the 96th General Assembly, an |
employer enrolled in E-Verify or any other Employment |
Eligibility Verification System must attest, under penalty of |
perjury, on a form prescribed by the IDOL available on the IDOL |
website: |
(1) that the employer has received the Basic Pilot or |
E-Verify training materials from the Department of |
Homeland Security (DHS), and that all employees who will |
administer the program have completed the Basic Pilot or |
E-Verify Computer Based Tutorial (CBT); and |
(2) that the employer has posted the notice from DHS |
|
indicating that the employer is enrolled in the Basic |
Pilot or E-Verify program and the anti-discrimination |
notice issued by the Office of Special Counsel for |
Immigration-Related Unfair Employment Practices (OSC), |
Civil Rights Division, U.S. Department of Justice in a |
prominent place that is clearly visible to both |
prospective and current employees. The employer must |
maintain the signed original of the attestation form |
prescribed by the IDOL, as well as all CBT certificates of |
completion and make them available for inspection or |
copying by the IDOL at any reasonable time. |
(c) It is a violation of this Act for an employer enrolled |
in an Employment Eligibility Verification System, including |
the E-Verify program and the Basic Pilot program: |
(1) to fail to display the notices supplied by DHS and |
OSC in a prominent place that is clearly visible to both |
prospective and current employees; |
(2) to allow any employee to use an Employment |
Eligibility Verification System prior to having completed |
CBT; |
(3) to fail to take reasonable steps to prevent an |
employee from circumventing the requirement to complete |
the CBT by assuming another employee's E-Verify or Basic |
Pilot user identification or password; |
(4) to use the Employment Eligibility Verification |
System to verify the employment eligibility of job |
|
applicants prior to hiring or to otherwise use the |
Employment Eligibility Verification System to screen |
individuals prior to hiring and prior to the completion of |
a Form I-9; |
(5) to terminate an employee or take any other adverse |
employment action against an individual prior to receiving |
a final nonconfirmation notice from the Social Security |
Administration or the Department of Homeland Security; |
(6) to fail to notify an individual, in writing, of |
the employer's receipt of a tentative nonconfirmation |
notice, of the individual's right to contest the tentative |
nonconfirmation notice, and of the contact information for |
the relevant government agency or agencies that the |
individual must contact to resolve the tentative |
nonconfirmation notice; |
(7) to fail to safeguard the information contained in |
the Employment Eligibility Verification System, and the |
means of access to the system (such as passwords and other |
privacy protections). An employer shall ensure that the |
System is not used for any purpose other than employment |
verification of newly hired employees and shall ensure |
that the information contained in the System and the means |
of access to the System are not disseminated to any person |
other than employees who need such information and access |
to perform the employer's employment verification |
responsibilities. |
|
(c-1) Any claim that an employer refused to hire, |
segregated, or acted with respect to recruitment, hiring, |
promotion, renewal or employment, selection for training or |
apprenticeship, discharge, discipline, tenure or terms, |
privileges, or conditions of employment without following the |
procedures of the Employment Eligibility Verification System, |
including the Basic Pilot and E-Verify programs, may be |
brought under paragraph (G)(2) of Section 2-102 of the |
Illinois Human Rights Act. |
(c-2) It is a violation of this Section for an individual |
to falsely pose as an employer in order to enroll in an |
Employment Eligibility Verification System or for an employer |
to use an Employment Eligibility Verification System to access |
information regarding an individual who is not an employee of |
the employer. |
(d) Preemption. Neither the State nor any of its political |
subdivisions, nor any unit of local government, including a |
home rule unit, may require any employer to use an Employment |
Eligibility Verification System, including under the following |
circumstances: |
(1) as a condition of receiving a government contract; |
(2) as a condition of receiving a business license; or |
(3) as penalty for violating licensing or other |
similar laws. |
This subsection (d) is a denial and limitation of home |
rule powers and functions under subsection (h) of Section 6 of |
|
Article VII of the Illinois Constitution. |
(Source: P.A. 95-138, eff. 1-1-08; 96-623, eff. 1-1-10; |
96-1000, eff. 7-2-10.)
|
(820 ILCS 55/13 new) |
Sec. 13. Restrictions on the use of Employment Eligibility |
Verification Systems. |
(a) As used in this Section: |
"Employee's authorized representative" means an exclusive |
collective bargaining representative. |
"Inspecting entity" means the U.S. Immigration and Customs |
Enforcement, United States Customs and Border Protection, or |
any other federal entity enforcing civil immigration |
violations of an employer's I-9 Employment Eligibility |
Verification forms. |
(b) An employer shall not impose work authorization |
verification or re-verification requirements greater than |
those required by federal law. |
(c) If an employer contends that there is a discrepancy in |
an employee's employment verification information, the |
employer must provide the employee with: |
(1) The specific document or documents, if made |
available to the employer, that the employer deems to be |
deficient and the reason why the document or documents are |
deficient. Upon request by the employee or the employee's |
authorized representative, the employer shall give to the |
|
employee the original document forming the basis for the |
employer's contention of deficiency within 7 business |
days. |
(2) Instructions on how the employee can correct the |
alleged deficient documents if required to do so by law. |
(3) An explanation of the employee's right to have |
representation present during related meetings, |
discussions, or proceedings with the employer, if allowed |
by a memorandum of understanding concerning the federal |
E-Verify system. |
(4) An explanation of any other rights that the |
employee may have in connection with the employer's |
contention. |
(d) When an employer receives notification from any |
federal or State agency, including, but not limited to, the |
Social Security Administration or the Internal Revenue |
Service, of a discrepancy as it relates to work authorization, |
the following rights and protections are granted to the |
employee: |
(1) The employer must not take any adverse action |
against the employee, including re-verification, based on |
the receipt of the notification. |
(2) The employer must provide a notice to the employee |
and, if allowed by a memorandum of understanding |
concerning the federal E-Verify system, to the employee's |
authorized representative, if any, as soon as practicable, |
|
but not more than 5 business days after the date of receipt |
of the notification, unless a shorter timeline is provided |
for under federal law or a collective bargaining |
agreement. The notice to the employee shall include, but |
not be limited to: (i) an explanation that the federal or |
State agency has notified the employer that the employee's |
work authorization documents presented by the employee do |
not appear to be valid or reasonably relate to the |
employee; and (ii) the time period the employee has to |
contest the federal or State agency's determination. The |
employer shall notify the employee in person and deliver |
the notification by hand, if possible. If hand delivery is |
not possible, then the employer shall notify the employee |
by mail and email, if the email address of the employee is |
known, and shall notify the employee's authorized |
representative. Upon request by the employee or the |
employee's authorized representative, the employer shall |
give to the employee the original notice from the federal |
or State agency, including, but not limited to, the Social |
Security Administration or the Internal Revenue Service, |
within 7 business days. This original notice shall be |
redacted in compliance with State and federal privacy laws |
and shall relate only to the employee receiving the |
notification. |
(3) The employee may have a representative of the |
employee's choosing in any meetings, discussions, or |
|
proceedings with the employer. |
The procedures described in this subsection do not apply |
to inspections of an employer's I-9 Employment Verification |
Forms by an inspecting entity or any relevant procedure |
otherwise described in subsection (g). |
(e) Except as otherwise required by federal law, an |
employer shall provide a notice to each current employee, by |
posting in English and in any language commonly used in the |
workplace, of any inspections of I-9 Employment Eligibility |
Verification forms or other employment records conducted by |
the inspecting entity within 72 hours after receiving notice |
of the inspection. Written notice shall also be given within |
72 hours to the employee's authorized representative, if any. |
The posted notice shall contain the following information: |
(1) the name of the entity conducting the inspections |
of I-9 Employment Eligibility Verification forms or other |
employment records; |
(2) the date that the employer received notice of the |
inspection; |
(3) the nature of the inspection to the extent known |
by the employer; and |
(4) a copy of the notice received by the employer. |
An employer, upon reasonable request, shall provide an |
employee a copy of the Notice of Inspection of I-9 Employment |
Eligibility Verification forms. |
(f) On or before 6 months after the effective date of this |
|
amendatory Act of the 103rd General Assembly, the Department |
shall develop a template posting that employers may use to |
comply with the requirements of subsection (e) to inform |
employees of a notice of inspection to be conducted of I-9 |
Employment Eligibility Verification forms or other employment |
records conducted by the inspecting entity. The Department |
shall make the template available on its website so that it is |
accessible to any employer. |
(g) Except as otherwise required by federal law, if during |
an inspection of the employer's I-9 Employment Eligibility |
Verification forms by an inspecting entity, the inspecting |
entity makes a determination that the employee's work |
authorization documents do not establish that the employee is |
authorized to work in the United States and provide the |
employer with notice of that determination, the employer shall |
provide a written notice as set forth in this subsection to the |
employee within 5 business days, unless a shorter timeline is |
provided for under federal law or a collective bargaining |
agreement. The employer's notice to the employee shall relate |
to the employee only. The employer shall notify the employee |
in person and deliver the notification by hand, if possible. |
If hand delivery is not possible, then the employer shall |
notify the employee by mail and email, if the email address of |
the employee is known, and shall notify the employee's |
authorized representative. The employer's notice to the |
employee shall contain the following information: |
|
(1) an explanation that the inspecting entity has |
determined that the employee's work authorization |
documents presented by the employee do not appear to be |
valid or reasonably relate to the employee; |
(2) the time period for the employee to notify the |
employer whether the employee is contesting or not |
contesting the determination by the inspecting entity; |
(3) if known by the employer, the time and date of any |
meeting with the employer and employee or with the |
inspecting entity and employee related to the correction |
of the inspecting entity's determination that the |
employee's work authorization documents presented by the |
employee do not appear to be valid or reasonably relate to |
the employee; and |
(4) notice that the employee has the right to |
representation during any meeting scheduled with the |
employer and the inspecting entity. |
If the employee contests the inspecting entity's |
determination, the employer will notify the employee within 72 |
hours after receipt of any final determination by the |
inspecting entity related to the employee's work authorization |
status. Upon request by the employee or the employee's |
authorized representative, the employer shall give the |
employee the original notice from the inspecting entity within |
7 business days. This original notice shall be redacted in |
compliance with State and federal privacy laws and shall |
|
relate only to the employee receiving the notification. |
(h) This Section does not require a penalty to be imposed |
upon an employer or person who fails to provide notice to an |
employee at the express and specific direction or request of |
the federal government. In determining the amount of the |
penalty, the appropriateness of the penalty to the size of the |
business of the employer charged and the gravity of the |
violation shall be considered. The penalty may be recovered in |
a civil action brought by the Director in any circuit court. |
Upon request by the employee or the employee's authorized |
representative, the employer shall give the employee the |
original notice from the inspecting entity within 7 business |
days. |
(i) This Section applies to public and private employers. |
(j) Nothing in this Section shall be interpreted, |
construed, or applied to restrict or limit an employer's |
compliance with a memorandum of understanding concerning the |
use of the federal E-Verify system.
|
