The Illinois General Assembly recently amended “The Right to Privacy in the Workplace Act” (Public Act 95-138). The amendment, which is effective January 1, 2008, restricts the use of employment eligibility verification systems. In accordance with the amendment, employers are prohibited from enrolling in any Employment Verification System, including the Basic Pilot Program, until the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative non-confirmation notices issued to employers within 3 days, unless otherwise required by federal law.

Subject to the above, an employer who enrolls in the Basic Pilot program is prohibited from the Employment Verification Systems, to confirm the employment authorization of new hires unless the employer attests, under penalty of perjury on a form prescribed by the Department of Labor that (1) the employer has received the Basic Pilot training materials from the Department of Homeland Security and that the personnel who will administer the program have received the Basic Pilot Computer Based Tutorial, and (2) the employer has posted the notice received from the Department of Homeland Security indicating that the employer is enrolled in the Basic Pilot Program, the anti-discrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices, and the anti-discrimination notice issued by the Illinois Department of Human Rights.

The employer is required to display these notices in a prominent place that is clearly visible to prospective employees. (Chapter 820, Section 55/12, as enacted by H.B. 1744, L. 2007, effective June 1, 2008).

As this newsletter was going to print, the Department of Homeland Security sued the State of Illinois hoping to block the implementation of the above law. According to the Homeland Security secretary, Michael Chertoff, his Department “will vigorously contest any efforts to impede our enforcement measures.” Due to timing, we will provide an update on this issue in our next newsletter.