Real World Impact: Based on a recent amendment to the Illinois Right to Privacy in the Workplace Act (the Act) sent to Governor JB Pritzker for signature on June 20, 2024, it would appear that the answer to this question might be yes! Thus, employers in Illinois who voluntarily use the federal E-Verify system should be aware of pending legislation that could be interpreted to bar such use. If this legislation is enacted, employers will need to evaluate their work authorization practices to ensure they comply with Illinois state law.
Employers in the United States are required by federal law to verify the identity and work authorization for each person they hire by completing and retaining a Form I-9 Employment Eligibility Verification for each employee. Most employers fulfill this task through manual review of documents. The standard imposed on these employers is that the document must reasonably appear genuine on its face and relate to the person presenting it. Therefore, manual review can be somewhat subjective and may cause a fraudulent document to be accepted, particularly with improving technology used to create fake identifications. As a result, some employers opt to use the Federal E-Verify system, which allows the federal government to review and match the information provided by the employee and alert the employer if there is a potential issue.
Following the 2023 legislative session, we reported on an amendment to the Act (SB1515), that passed both houses but was eventually vetoed by Governor Pritzker, based on the request of the sponsors, apparently claiming it did not go far enough in protecting worker rights and instead, due to "irreconcilable drafting errors," would have an adverse effect on the workers it sought to protect. (See the Governor's Message on the Veto) The original version of SB1515 would have outright banned Illinois employers from using the federal E-Verify system unless they were required to use it by law (such as if the employers had a federal contract). The original language stated: "Unless otherwise required by State or Federal law, an employer shall not voluntarily enroll in the E-Verify or similar Electronic Employment System." Such prohibition arguably would have the effect of causing more employers to unwittingly hire workers who are not legally allowed to work in the United States. Notably, Illinois previously passed a similar attempt at barring the use of E-Verify in 2007, which was ultimately struck down by a federal court as a violation of the Supremacy Clause of the U.S. Constitution. United States of America v. The State of Illinois, No. 07-3261 (C.D. Ill. Mar. 12, 2009). Perhaps realizing the prohibition against using E-Verify was deemed unconstitutional, SB1515 was eventually amended to not specifically prohibit the use of E-Verify, but instead to put severe constraints and obligations on its use. Again, however, SB1515 was ultimately vetoed.
Similar legislation was introduced this year (on a second Senate amendment to what began as a shell bill in February 2023) in the form of SB0508. The bill went through numerous additional amendments and ultimately resulted in the enrolled version which, as of publication, is waiting to be signed by Governor Pritzker. The bill adds language, however, that was not in SB1515, and one may conclude that the language is either intended to bar the use of E-Verify or is at least intended to cause confusion among employers enough to scare them into not using the system. Specifically, Section 12(a) of the Right to Privacy in the Workplace Act has added the following:
"Nothing in this Act shall be construed to require an employer to enroll in any Electronic Employment Verification System, including the E-Verify program...beyond those obligations that have been imposed upon them by federal law."
Further, Section 13(b) (all of Section 13 is new) states:
[a]n employer shall not impose work authorization verification or re-verification requirements greater than those required by federal law."
Thus, reading these two sentences together, if employers are not required by federal law to use E-Verify (which most are not), then they cannot use that or any other verification system to determine work authorization status. While this legislation was pending and going through amendments, we spoke with several Legislative staffers, who tried to assure us that the intent of the law is not to bar employers from using E-Verify unless legally required. We suggested some easy fixes to clarify this unofficial position, such as stating "nothing in this Act shall be construed to prohibit an employer from..." using E-Verify or changing Section 13(b) to state that an employer shall not impose work authorization verification requirements greater than those "allowed" by federal law rather than "required" by federal law. Despite seemingly easy fixes to ensure the law did not unintentionally prohibit the use of E-Verify, the Legislature passed the bill still containing what can only be interpreted as a prohibition for most employers. Therefore, Illinois employers should be aware of this before using E-Verify if they are not required by law to use it. It would not be surprising to see court challenges to this language should the Governor sign it with no further changes.
In a further addition to the legislation that was not found in the vetoed SB1515, the language also states in Section 13(d) that when an employer receives notification from a federal or state agency of a discrepancy as it relates to work authorization, including from the Social Security Administration or IRS, "The employer must not take any adverse action against the employee, including the re-verification, based on the receipt of the notification." There is no further language found in the amendments that would ever give employers the green light to terminate an employee following such a notification, even after the employee has exhausted the appeal process or has indicated they do not intend to challenge the finding, or after a final nonconfirmation notice from the agency. Thus, in addition to the prohibition against using E-Verify, the Legislature may also be trying to prohibit employers from acting on information they receive from the federal government and forcing them to keep employed workers who do not have the right to work in the United States. While this might not be the intent, the language of the law can certainly be read that way. Again, if the Legislature was not trying to prohibit any adverse action from ever being taken, it would have been easy for the Legislature to have included an affirmative statement confirming that termination is allowed after the exhaustion or waiver of appeal rights or receipt of a final nonconfirmation notice from the SSA or IRS.
The Bottom Line
Whether intentional or just poor drafting, the Illinois Legislature's changes to the Act will effectively ban most Illinois employers from using E-Verify, and possibly prohibit employers from ever taking adverse actions against employees with discrepancies in their work authorization documentation. While it would be unfortunate if this was the intent (and it will likely be met with legal challenges), the end result is the increased likelihood that employers would be forced to keep employed workers who do not have the legal authorization to work, possibly subjecting employers to large fines and penalties. If the intent is to make sure employees and prospective employees are not discriminated against based on their work authorization status (which is already a recognized protected classification in the Illinois Human Rights Act), or is to allow a challenge to the findings of the E-Verify system (which is already a right provided under E-Verify and is also addressed elsewhere in the proposed legislation), then the Legislature would have and should have had no difficulty adding language to clarify that employers are not prohibited from using E-Verify, and that they may act on findings from governmental agencies once appeal rights have been waived or exhausted or upon receipt of a final nonconfirmation notice. The inclusion of the troublesome sentences to the current version of the proposed law can be seen as an intentional attempt to scare employers away from using a system to verify employees' right to work in the country, and to cause them to hire and be forced to retain such workers. If we are wrong in our interpretation of legislative intent, then we look to the Governor to send the legislation back for clarification or to veto it and try again next year.
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