96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB1146

 

Introduced 2/11/2009, by Rep. Harry R. Ramey, Jr.

 

SYNOPSIS AS INTRODUCED:
 
820 ILCS 55/12
820 ILCS 55/15   from Ch. 48, par. 2865

    Amends the Right to Privacy in the Workplace Act. Provides that until such time as any Employment Verification System is able to automatically verify the work authorization status of 99% of employees, the Illinois Department of Labor shall post on its website a link to a federal government website that provides an employer information about the federal e-verify program (rather than discouraging employers from participating in such program and prohibiting the State of Illinois from participating in the program, unless otherwise required by federal law). Eliminates the preemption provisions. Provides that the court shall award an employee or applicant for employment prevailing in an action under the Act for a willful and knowing violation of the Act, $500 per affected employee plus costs, reasonable attorney's fees, and actual damages. Provides that the provisions of the Act are severable. Effective immediately.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1     AN ACT concerning employment.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Right to Privacy in the Workplace Act is
5 amended by changing Sections 12 and 15 as follows:
 
6     (820 ILCS 55/12)
7     Sec. 12. Use Restrictions on use of Employment Eligibility
8 Verification Systems.
9     (a) Until such time as any Employment Eligibility
10 Verification System, including the E-Verify program and the
11 Basic Pilot program, as authorized by 8 U.S.C. 1324a, Notes,
12 Pilot Programs for Employment Eligibility Confirmation
13 (enacted by P.L. 104-208, div. C, title IV, subtitle A), is
14 able to automatically verify the work authorization status of
15 99% of employees, the Illinois Department of Labor shall post
16 on its website a link to a federal government website that
17 provides an employer information about the federal e-verify
18 program.
19 Employers are prohibited from enrolling in any Employment
20 Eligibility Verification System, including the Basic Pilot
21 program, as authorized by 8 U.S.C. 1324a, Notes, Pilot Programs
22 for Employment Eligibility Confirmation (enacted by PL
23 104-208, div. C, title IV, subtitle A), until the Social

 

 

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1 Security Administration (SSA) and Department of Homeland
2 Security (DHS) databases are able to make a determination on
3 99% of the tentative nonconfirmation notices issued to
4 employers within 3 days, unless otherwise required by federal
5 law.
6     (b) Upon initial enrollment in an Employment Eligibility
7 Verification System or within 30 days after the effective date
8 of this amendatory Act of the 96th General Assembly, an
9 employer enrolled in an Employment Eligibility Verification
10 System must attest, Subject to subsection (a) of this Section,
11 an employer who enrolls in the Basic Pilot program is
12 prohibited from the Employment Eligibility Verification
13 Systems, to confirm the employment authorization of new hires
14 unless the employer attests, under penalty of perjury, on a
15 form prescribed by the Department of Labor:
16         (1) that the employer has received the Basic Pilot or
17     E-Verify training materials from the Department of
18     Homeland Security (DHS) DHS, and that all employees
19     personnel who will administer the program have completed
20     the Basic Pilot or E-Verify Computer Based Tutorial (CBT);
21     and
22         (2) that the employer has posted the notice from DHS
23     indicating that the employer is enrolled in the Basic Pilot
24     or E-Verify program and , the anti-discrimination notice
25     issued by the Office of Special Counsel for
26     Immigration-Related Unfair Employment Practices (OSC),

 

 

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1     Civil Rights Division, U.S. Department of Justice in a
2     prominent place that is clearly visible to prospective
3     employees , and the anti-discrimination notice issued by
4     the Illinois Department of Human Rights (IDHR).
5     The employer must maintain the signed original of the
6 attestation form prescribed by the Department, as well as
7 copies of all CBT certificates of completion, and make them
8 available for inspection or copying by the Department at any
9 reasonable time.
10     (c) It is a violation of this Act for an employer enrolled
11 in an Employment Eligibility Verification System:
12 Responsibilities of employer using Employment Eligibility
13 Verification Systems.
14         (1) to fail to The employer shall display the notices
15     supplied by DHS and , OSC, and IDHR in a prominent place
16     that is clearly visible to prospective employees; .
17         (2) to allow an employee to use an Employment
18     Eligibility Verification System prior to having completed
19     the CBT; The employer shall require that all employer
20     representatives performing employment verification queries
21     complete the CBT. The employer shall attest, under penalty
22     of perjury, on a form prescribed by the Department of
23     Labor, that the employer representatives completed the
24     CBT.
25         (3) to fail to The employer shall become familiar with
26     and comply with the Basic Pilot Manual.

 

 

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1         (4) The employer shall notify all prospective
2     employees at the time of application that such employment
3     verification system may be used for immigration
4     enforcement purposes.
5         (5) The employer shall provide all employees who
6     receive a tentative nonconfirmation with a referral letter
7     and contact information for what agency the employee must
8     contact to resolve the discrepancy.
9         (6) The employer shall comply with the Illinois Human
10     Rights Act and any applicable federal anti-discrimination
11     laws.
12          (7) The employer shall use the information it receives
13     from SSA or DHS only to confirm the employment eligibility
14     of newly-hired employees after completion of the Form I-9.
15     The employer shall safeguard the this information
16     contained in the Employment Eligibility Verification
17     System, and the means of access to the System it (such as
18     passwords and other privacy protections). An employer
19     shall , to ensure that the System it is not used for any
20     other purpose other than employment verification of
21     newly-hired employees and shall ensure as necessary to
22     protect its confidentiality, including ensuring that the
23     information contained in the System and the means of access
24     to the System are it is not disseminated to any person
25     other than employees of the employer who need such
26     information and access it to perform the employer's

 

 

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1     employment verification responsibilities. All claims that
2     an employer refused to hire, segregated, or acted with
3     respect to recruitment, hiring, promotion, renewal of
4     employment, selection for training or apprenticeship,
5     discharge, discipline, tenure or terms, privileges, or
6     conditions of employment without following the procedures
7     under the Basic Pilot or E-Verify program shall be brought
8     under paragraph (G)(2) of Section 2-102 of the Illinois
9     Human Rights Act.
10     (d) (Blank). Preemption. No unit of local government,
11 including a home rule unit, may require any employer to use an
12 Employment Eligibility Verification System, including under
13 the following circumstances:
14         (1) as a condition of receiving a government contract;
15         (2) as a condition of receiving a business license; or
16         (3) as penalty for violating licensing or other similar
17     laws.
18     This subsection (d) is a denial and limitation of home rule
19 powers and functions under subsection (h) of Section 6 of
20 Article VII of the Illinois Constitution.
21 (Source: P.A. 95-138, eff. 1-1-08.)
 
22     (820 ILCS 55/15)  (from Ch. 48, par. 2865)
23     Sec. 15. Administration and enforcement.
24     (a) The Director of Labor or his authorized representative
25 shall administer and enforce the provisions of this Act. The

 

 

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1 Director of Labor may issue rules and regulations necessary to
2 administer and enforce the provisions of this Act.
3     (b) If an employee or applicant for employment alleges that
4 he or she has been denied his or her rights under this Act, he
5 or she may file a complaint with the Department of Labor. The
6 Department shall investigate the complaint and shall have
7 authority to request the issuance of a search warrant or
8 subpoena to inspect the files of the employer or prospective
9 employer, if necessary. The Department shall attempt to resolve
10 the complaint by conference, conciliation, or persuasion. If
11 the complaint is not so resolved and the Department finds the
12 employer or prospective employer has violated the Act, the
13 Department may commence an action in the circuit court to
14 enforce the provisions of this Act including an action to
15 compel compliance. The circuit court for the county in which
16 the complainant resides or in which the complainant is employed
17 shall have jurisdiction in such actions.
18     (c) If an employer or prospective employer violates this
19 Act, an employee or applicant for employment may commence an
20 action in the circuit court to enforce the provisions of this
21 Act, including actions to compel compliance, where efforts to
22 resolve the employee's or applicant for employment's complaint
23 concerning the violation by conference, conciliation or
24 persuasion under subsection (b) have failed and the Department
25 has not commenced an action in circuit court to redress the
26 violation. The circuit court for the county in which the

 

 

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1 complainant resides or in which the complainant is employed
2 shall have jurisdiction in such actions.
3     (d) Failure to comply with an order of the court may be
4 punished as contempt. In addition, the court shall award an
5 employee or applicant for employment prevailing in an action
6 under this Act the following damages:
7         (1) Actual damages plus costs.
8         (2) For a willful and knowing violation of this Act,
9     $200 plus costs, reasonable attorney's fees, and actual
10     damages.
11         (3) For a willful and knowing violation of subsection
12     (c) of Section 12 of this Act, $500 per affected employee
13     plus costs, reasonable attorney's fees, and actual
14     damages.
15     (e) Any employer or prospective employer or his agent who
16 violates the provisions of this Act is guilty of a petty
17 offense.
18     (f) Any employer or prospective employer, or the officer or
19 agent of any employer or prospective employer, who discharges
20 or in any other manner discriminates against any employee or
21 applicant for employment because that employee or applicant for
22 employment has made a complaint to his employer, or to the
23 Director or his authorized representative, or because that
24 employee or applicant for employment has caused to be
25 instituted or is about to cause to be instituted any proceeding
26 under or related to this Act, or because that employee or

 

 

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1 applicant for employment has testified or is about to testify
2 in an investigation or proceeding under this Act, is guilty of
3 a petty offense.
4 (Source: P.A. 87-807.)
 
5     Section 97. Severability. The provisions of this Act are
6 severable under Section 1.31 of the Statute on Statutes.
 
7     Section 99. Effective date. This Act takes effect upon
8 becoming law.