By: Kevin M. Mosher, Esq.
Effective January 1, 2010, employers in Illinois will have a new set of rules regarding their use of the federal E-Verify system to confirm the work authority for newly hired employees or employees placed on federal contracts.
Touted by the federal government the past few years as a viable means by which employers could check incoming employees' lawful ability to work, the E-Verify system has been gaining acceptance nationally for its increasing accuracy and value to companies. No doubt the government's manufacturing of fear through media-hyped raids on companies and its effectuation of the recent Executive Order requiring certain federal contractors and sub-contractors to use E-Verify as a requirement under the contracts, has had some impact on the wave of employers to the E-Verify system. For whatever the reason, use of E-Verify has increased as has the efficiency and accuracy of the system itself.
Enter the State of Illinois. In 2007, Illinois passed legislation to become the only state in the country to ban the use of the federal E-Verify system (by employers in the state), unless and until certain guidelines had been satisfied. Illinois' attempt to enact such legislation was quickly crushed by the federal government, leaving only minor, fairly insignificant, parts of the Illinois law remaining. That has been the state of affairs until today.
Welcome to the New Year and a newly revised Illinois E-Verify law. Signed into law in August 2009, the new Illinois E-Verify law, unlike the old one, does not prohibit Illinois employers from enrolling in the E-Verify system. Instead, the law creates a new website, sponsored by the Illinois Department of Labor (IDOL), that will track the E-Verify program's accuracy and provide information for employers to understand their obligations and their employees' rights under the federal program. More importantly, the law will require that E-Verify enrollees, including current E-Verify users, must attest, under penalty of perjury, to the IDOL the following:
- The company has received the E-Verify training materials from the Department of Homeland Security (DHS) and that all employees who will administer the program have completed the computer-based tutorial training provided by the Basic Pilot or E-Verify program;
- The company has posted the E-Verify program's anti-discrimination notice, which is issued by the federal Office of the Special Counsel (within DHS). The notice must be posted in a conspicuous place visible to both current employees and prospective employees; and
- The company must keep the signed original attestation and computer-based tutorial training certificates on file for inspection and copying by the IDOL.
In addition to these procedural and notice requirements, which will be enforced by the IDOL, the new law also creates a cause of action for employees and prospective employees to file a charge of discrimination against employers who discriminate on the basis of recruitment, hiring, discharge, discipline, etc., by not following the Basic Pilot or E-Verify program's procedures. For example, employers who take adverse action against employees or prospective employees prior to receiving a final non-confirmation notice from either Social Security or the DHS or failing to notify the person that it received a tentative non-confirmation notice, and the individual's right to contest the notice by contacting the relevant agency, could find themselves on the receiving end of a charge that they violated the Illinois Human Rights Act.
In sum, current Illinois E-Verify users will have until January 31, 2010, to complete the IDOL's attestation, and new E-Verify enrollees will need to complete it at the time of enrollment. In addition, any company using E-Verify in Illinois will need to make certain that effective visible notices are posted and that they are particularly familiar with the procedures for handling tentative non-confirmations received from the program.
Questions? Please contact WS Shareholder and Senior Attorney Kevin M. Mosher in our Minneapolis, MN office at (952) 746-1700, or kemosher@wesselssherman.com.
