The Illinois Department of Labor recently clarified the state’s new E-Verify requirements in the Right to Privacy in the Workplace Act.  When read in their entirety, these new requirements appeared to prohibit private employers from using the E-Verify system without running afoul of the law. 

However, this new guidance indicates otherwise, albeit with some added requirements. The Right to Privacy in the Workplace Act received an amendment under Public Act 103-879 with new regulations concerning the federal E-Verify system. These new regulations will take effect on January 1, 2025, and include significant changes for employers using E-Verify.

This amendment introduced notification requirements where the employer receives notice of an upcoming inspection or a worker’s documentation discrepancy. It also prohibits retaliation against workers for exercising their rights under the federal program. Public Act 103-879 also created a framework governing employers’ responses in the event of tentative non-confirmation.

However, two specific clauses within the law gave rise to a considerable degree of confusion for employers that use the program. These include:

• 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, Notes, Pilot Programs for Employment Eligibility Confirmation (enacted by P.L. 104-208, div. C, title IV, subtitle A) beyond those obligations that have been imposed upon them by federal law.”; and
• Section 13 (b): “An employer shall not impose work authorization verification or re-verification requirements greater than those required by federal law.”

When read together, many assumed the texts prohibited employers from using the E-Verify system. However, the Illinois Department of Labor has released a new Frequently Asked Questions page to address the confusion. Under this new page, Question 4 asks, “May Illinois employers choose to voluntarily use E-Verify?” The answer is as follows:

“Yes. 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.”

As a result, Illinois employers may choose to use the E-Verify system. However, they must adhere to more stringent requirements and potential penalties should they continue or begin using the E-Verify system. This change in expectations means employers should review the Right to Privacy in the Workplace Act and Public Act 103-879 to ensure compliance.

The best way for employers to ensure compliance is to incorporate an electronic Form I-9 management system in their hiring process. This system walks users through the employment eligibility verification (Form I-9) process, provides secure digital storage, and offers optional E-Verify integration.

Automate your employment eligibility verification today with the ensured compliance of I-9 Compliance.

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