E-Verify now legal in Illinois … if employers play by new rules

Illinois’ long-standing mistrust of the federal government’s E-Verify employment eligibility verification program has now been codified into a new law meant to make sure the online system can’t be used to harm workers. Employers that use E-Verify must now complete the Illinois Department of Labor’s “E-Verify Employer Attestation Form.”

The requirement began Jan. 1, when the Illinois Right to Privacy in the Workplace Act took effect.

In 2007, Illinois became the only state to forbid employers from using E-Verify until federal officials could ensure that the system wouldn’t compromise workers’ civil and legal rights. The new law makes it legal for employers to use E-Verify, but they must jump through lots of hoops to do so.

Employers must use the new attestation form to show that:

1. All employees using the E-Verify program have received training materials and completed online computer-based training provided by U.S. Department of Homeland Security (DHS).

2. It has posted the required notice from DHS indicating that it is enrolled in E-Verify.

3. It maintains the original signed attestation form as well as online computer-based training certificates of completion and makes them available for copying and inspection at the request of the state labor department.

4. The employer has posted the required anti-discrimination notice issued by the U.S. Justice Department’s Office of Special Counsel for Immigrant-Related Unfair Employment Practices.

There are many ways to run afoul of the new law. Employers violate the act if they:

• Fail to display the DHS and Justice Department notices in a place clearly visible to prospective and current employees
• Allow an employee to use the E-Verify system before completing the computer-based training
• Allow an employee who hasn’t had training to log into the systems using the user ID and password of someone who has
• Use the E-Verify program as a prescreening mechanism for prospective employees
• Terminate an employee before he or she has received a final nonconfirmation notice from DHS or the Social Security Administration
• Fail to notify the employee, in writing, of the employer’s receipt of a tentative nonconfirmation notice and of the employee’s right to contest it
• Fail to safeguard the information contained in the E-Verify program database.

Additionally, anyone impersonating an employer to access information about an individual is liable under the act; so are employers that access information about anyone who is not their employee. Fines range from $500 to $1,000 per employee, plus attorney costs and actual damages suffered by the injured individual.

The law also empowers the state Department of Human Rights to investigate discrimination complaints if an applicant feels an employer has misused E-Verify to discriminate.