Tuesday, September 26, 2017

Illinois Employers: Be Careful If You Use E-Verify

As I recently discussed, the penalties for hiring illegal immigrants can be severe, including hefty fines and even jail time. To make it easier for employers to avoid these penalties and be in compliance with federal employment laws, the Department of Homeland Security (DHS) created E-Verify, a free online service that allows employers to verify the employment eligibility of newly hired employees. E-Verify is voluntary for most employers, although some employers with federal contracts are required to use it.

Some states also require employers to use E-Verify. Illinois, however, is in the unique position of passing legislation that discourages employers from using E-Verify. Ostensibly concerned about inaccuracies in E-Verify data, the Illinois legislature passed a law in 2007 that would have prohibited private employers from using E-Verify. The DHS sued the State, arguing that the law was unconstitutional, and a court agreed, striking it down.

Illinois then amended the law, and the amended version took effect on January 1, 2010. The law made changes to the Right to Privacy in the Workplace Act (820 ILCS 55/1, et seq.) requiring employers to swear that they received the E-Verify training materials from the DHS and that all employees with access to the company’s E-Verify account have completed mandatory online E-Verify tutorials. Employers also can only use E-Verify once they have hired employees; they cannot use it as a pre-screening mechanism. They must notify an employee, in writing; if the E-Verify program determines that they are not authorized to work in the United States, and cannot fire an employee prior to receiving a final non-confirmation notice from the DHS. Employers must also safeguard employee information contained in the E-Verify program database.

The law also requires employers to post an anti-discrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices. Additionally, the law prevents local governments from requiring employers to use E-Verify. Employers who violate the law can be subject to fines by the Illinois Department of Labor and can even be sued.

The Right to Privacy in the Workplace Act puts employers between a rock and a hard place. On the one hand, they can face serious penalties for hiring an unauthorized worker. On the other, failing to comply with the letter of the law in their use of E-Verify can also subject them to serious penalties. Ultimately, I suggest that Illinois employers be very cautious when using E-Verify. Contact an attorney prior to using E-Verify to ensure that you are in compliance with the law.