What happened?

On October 29, 2024, the Illinois Department of Labor (IDOL) issued a FAQ on the Right to Privacy in the Workplace Act (“SB0508” or “the Act”), addressing the widespread misinformation and misunderstanding about the Act’s impact on E-Verify in Illinois and was created by IDOL in response to policy clarification requests.

Quick Summary:

• The new FAQ clarifies that SB0508 does not prohibit employers from voluntarily using E-Verify for employment verification; in other words, the enrollment and use of E-Verify is NOT prohibited in Illinois for private employers that do not have federal contracts.

• It also emphasizes compliance with anti-discrimination provisions and proper employee notification.

What are the details?

Background:

• On July 2, 2024, Governor JB Pritzker signed SB 0508, the Illinois Right to Privacy in the Workplace Act or the Act.

• This created a lot of confusion, ranging from “the act prohibiting employers from using E-Verify unless explicitly required to do so under federal law” to “the Act is restraining employers from using E-Verify or similar mechanisms.”

• The Illinois “Right to Privacy in the Workplace Act” confused whether it banned employers from using E-Verify unless federally mandated due to two specific clauses in the Act:
  • Section 12(a): “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, beyond those obligations that have been imposed upon them by federal law.”
  • Section 13(b): “An employer shall not impose work authorization verification or re-verification requirements greater than those required by federal law.”

Clarification:

• To address this, IDOL issued FAQs clarifying that the Act does not prohibit the voluntary use of E-Verify for employment verification.
  • The IDOL states: “Illinois law does not prohibit any employer from using E-Verify. However, employers who use E-Verify must follow the requirements of the Right to Privacy in the Workplace Act.”

• Additional considerations include:
  • Voluntary Use: Employers in Illinois can voluntarily use E-Verify but must comply with the Act’s requirements.
  • Employee Notification: Employers must notify employees about Form I-9 inspections and protect against retaliation for exercising E-Verify rights.
  • Anti-Discrimination: The Act includes strengthened anti-discrimination provisions to ensure fair use of E-Verify.
  • Training and Recordkeeping: Employers must follow specific training and recordkeeping requirements to prevent misuse of E-Verify.

• The FAQs also remind employers to consult the IDOL website for current information on E-Verify accuracy before enrolling, starting January 1, 2025.

• The Act prohibits misuse of E-Verify and imposes specific obligations in case of employment verification discrepancies.

Business Considerations

• Employers are encouraged to review their E-Verify processes, maintain proper account structures, ensure timely case closures, and update their Memorandum of Understanding (MOU) with E-Verify.

• Employers should adhere to the strengthened anti-discrimination provisions to ensure fair and transparent use of E-Verify.

• Employers should implement specific training and recordkeeping practices to prevent misuse of E-Verify.

Source References

• IL Right to Privacy in the Workplace/E-Verify FAQs
• Illinois Amends Employment Eligibility Verification (VensureHR)
• Illinois Prepares an E-Verify Ban, or at least a Big Scare for Employers (VensureHR)

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