by Meganne Trela (Summer 2017)

All employers are required to verify the identity and employment authorization of the individuals they hire, and complete a Form I-9. Hiring illegal aliens can lead to civil or criminal penalties. The fines for failing to fill out an I-9 or for hiring an illegal alien can be hefty and may even result in jail time. Currently, all federal agencies and contractors are required to use E-Verify, a free website verification service offered by the U.S. Citizenship and Immigration Services Office (“USCIS”) through the Department of Homeland Security. However, in Illinois, employers must meet additional obligations when they use E-Verify to verify a new employee’s working status through the protections of Section 12 of the Illinois Right to Privacy in the Workplace Act (“Act”). (820 ILCS 55/12)

E-verify electronically confirms the work authorization status of new employees. It requires employers to enter the employee’s name, Social Security number, and date of birth. Employees who show up in the federal database will be automatically authorized. Employees who do not show up in the database are issued a tentative non-confirmation and have eight working days to prove work eligibility and contest the tentative non-confirmation with the appropriate federal agency. If the employee fails to prove their eligibility to work, then the employer is required to fire them.

When an employee receives a tentative non-confirmation, the employer is required to give written notice of such issue and ask whether the employee intends on challenging the determination in a timely manner. The employer is subsequently required to provide a referral letter to the employee that provides information about contacting the Department of Homeland Security or the Social Security Administration to resolve the issue. Employees must contact the appropriate federal agency within eight federal work days to contest the tentative non-confirmation. During the contest, an employer cannot take an adverse action against an employee based on the challenge. Adverse action includes firing, suspending, withholding pay or training, or otherwise limiting employment. Termination of an employee based upon failure to obtain the proper work authorization can only be made after the employer receives a final non-confirmation or the employee chooses not to contest the initial tentative non-confirmation.

Technically, states can require employers to use E-Verify under the United States Supreme Court’s ruling in Arizona V. United States, 567 U.S. 387 (2012). In Illinois, however, the legislature has been skeptical of   E-Verify and even attempted to block the use of the program altogether, citing issues with inaccuracy and privacy. While Illinois’ attempt to block use of the program was halted by the Department of Homeland Security, Illinois was successful in placing statutory restrictions on the use of the program in Section 12 of the Act.

In Illinois, employers using E-Verify must attest that they received training materials and completed training tutorials; attest that they post the required legal notices regarding enrollment and non-discrimination procedures; and retain original attestations and proof of training for employees. Additionally, under the Act, Illinois local government entities cannot require that employers use E-Verify. A violation of Illinois law allows employees to seek redress through the Illinois Department of Labor and eventually through a private right of action.

Concerns about E-Verify stem from fears that the system is inaccurate, and allows employers to engage in unlawful discrimination. Some of the issues cited with E-Verify include false results, with an estimated 0.3% of eligible employees being declared unauthorized in 2010 (based on a study conducted by the Westat Corporation on behalf of USCIS found at USCIS.gov). To combat some of the concerns, the website offers employees a self-check feature allowing potential employees to check their status prior to applying for or starting jobs.

While E-Verify may be a cost-effective and useful tool for employers to ensure they are in compliance with federal immigration laws, employers in Illinois must be mindful of the additional requirements Illinois law imposes on program users. In addition, it is important for employers to adhere to and notify employees of the strict contest timelines that are in place. Local government entities dealing with work authorization issues should contact us for legal guidance.