The recently passed law amending the Illinois Right to Privacy in the Workplace Act places statutory obligations on employers that use E-Verify. Effective January 1, 2010, Illinois employers now are required to complete an attestation at the time of E-Verify enrollment. The form requires employers to attest to the following: (1) the employer and all its employees using E-Verify have received the Basic Pilot or E-Verify training materials and completed the online computer-based tutorial (CBT) training provided by the Department of Homeland Security (DHS); (2) the employer has posted the required notice from DHS indicating that the company is enrolled in E-Verify in a place that is clearly visible; (3) the employer maintains the original signed attestation form, as well as all CBT certificates of completion and makes them available for copying and inspection at the request of the Illinois Department of Labor; and (4) the employer has posted the required anti-discrimination notice issued by the Office of Special Counsel for Immigrant-Related Unfair Employment Practices (OSC) in a place that is clearly visible. Employers already enrolled in E-Verify must sign the attestation before January 30, 2010.

The new law also prohibits employers that are enrolled in E-Verify from: (1) failing to display the notices supplied by DHS and OSC in a place clearly visible to both prospective and current employees; (2) allowing an employee to use the E-Verify system prior to having completed the CBT training; (3) allowing employees that have not taken the CBT training to use the E-Verify program under an employee's user identification or password that has taken the training; (4) using the E-Verify program as a pre-screening mechanism for prospective employees; (5) terminating an employee prior to that employee receiving a final non-confirmation notice from the Social Security Administration or DHS; (6) failing to notify the employee, in writing, of the employer’s receipt of a tentative nonconfirmation notice and of the employee’s right to contest that tentative non-confirmation letter; and (7) failing to safeguard the information contained in the E-Verify program database. These are all prohibitions that are already prohibited by the federal E-Verify laws and regulations. The Act also prohibits an individual from falsely posing as an employer to enroll in E-Verify, and prohibits an employer from using E-Verify to access information regarding someone who is not an employee of the employer.

Employees and applicants now have a private right of action based on an employer's violation of the Act. The employee or applicant who believes the Act has been violated must first file a complaint with the Illinois Department of Labor and may then, under certain conditions, file a lawsuit in state court. If the court finds that the violation is willful and knowing, then the court may award the employee or applicant for employment $500 per affected employee plus costs, reasonable attorneys’ fees, and actual damages. Failure to comply with the order may be punished as contempt and the employer (or his/her representative) may be found guilty of a petty offense. A petty offense carries a maximum penalty of $1,000.

The Illinois Department of Human Rights has been granted investigation powers under the Illinois Human Rights Act when an employee or applicant believes that the employer refused to hire, promote, renew employment, discharged or disciplined the employee or applicant without following the procedures of the E-Verify program. Visit the Illinois Department of Labor website for more information on the law.