As reported in our September 24th update, the Illinois General Assembly amended “The Right to Privacy in the Workplace Act" (Public Act 95- 138) to prohibit Illinois employers from enrolling in any employment verification system, including the federal system, until the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative nonconfirmation notices issued to employers within 3 days, unless otherwise required by federal law.

Just prior to distributing our September 24th update, the Justice Department sued the State of Illinois in the U.S. District Court for the Central District of Illinois. The suit alleges that the Illinois statute, which prohibits the use of the federal databases to verify worker eligibility, is unconstitutional because the state law imposes conditions on the program not required by Congress violating the supremacy of federal law. The government seeks a permanent injunction of the Illinois law.

Interestingly, several states have taken the opposite position from Illinois. These states, through legislation or executive order, actually require both state and/or private employers to use the federal worker verification system. As the federal and state governments square-off over immigration issues, we will continue to monitor and report on these laws and their impact on employment practices.