Full Text of SB0508 103rd General Assembly
SB0508enr 103RD GENERAL ASSEMBLY | | | SB0508 Enrolled | | LRB103 02960 SPS 47966 b |
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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 and adding Section 13 as | 6 | | follows: | 7 | | (820 ILCS 55/12) | 8 | | Sec. 12. Use of Employment Eligibility Verification | 9 | | Systems. | 10 | | (a) Prior to enrolling choosing to voluntarily enroll in | 11 | | any Electronic Employment Verification System, including the | 12 | | E-Verify program and the Basic Pilot program, as authorized by | 13 | | 8 U.S.C. 1324a, Notes, Pilot Programs for Employment | 14 | | Eligibility Confirmation (enacted by P.L. 104-208, div. C, | 15 | | title IV, subtitle A), employers are urged to consult the | 16 | | Illinois Department of Labor's website for current information | 17 | | on the accuracy of E-Verify and to review and understand an | 18 | | employer's legal responsibilities relating to the use of the | 19 | | voluntary E-Verify program. Nothing in this Act shall be | 20 | | construed to require an employer to enroll in any Electronic | 21 | | Employment Verification System, including the E-Verify program | 22 | | and the Basic Pilot program, as authorized by 8 U.S.C. 1324a, | 23 | | Notes, Pilot Programs for Employment Eligibility Confirmation |
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| 1 | | (enacted by P.L. 104-208, div. C, title IV, subtitle A) beyond | 2 | | those obligations that have been imposed upon them by federal | 3 | | law. | 4 | | (a-1) The Illinois Department of Labor (IDOL) shall post | 5 | | on its website information or links to information from the | 6 | | United States Government Accountability Office, Westat, or a | 7 | | similar reliable source independent of the Department of | 8 | | Homeland Security regarding: (1) the accuracy of the E-Verify | 9 | | databases; (2) the approximate financial burden and | 10 | | expenditure of time that use of E-Verify requires from | 11 | | employers; and (3) an overview of an employer's | 12 | | responsibilities under federal and state law relating to the | 13 | | use of E-Verify. | 14 | | (b) Upon initial enrollment in an Employment Eligibility | 15 | | Verification System or within 30 days after the effective date | 16 | | of this amendatory Act of the 96th General Assembly, an | 17 | | employer enrolled in E-Verify or any other Employment | 18 | | Eligibility Verification System must attest, under penalty of | 19 | | perjury, on a form prescribed by the IDOL available on the IDOL | 20 | | website: | 21 | | (1) that the employer has received the Basic Pilot or | 22 | | E-Verify training materials from the Department of | 23 | | Homeland Security (DHS), and that all employees who will | 24 | | administer the program have completed the Basic Pilot or | 25 | | E-Verify Computer Based Tutorial (CBT); and | 26 | | (2) that the employer has posted the notice from DHS |
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| 1 | | indicating that the employer is enrolled in the Basic | 2 | | Pilot or E-Verify program and the anti-discrimination | 3 | | notice issued by the Office of Special Counsel for | 4 | | Immigration-Related Unfair Employment Practices (OSC), | 5 | | Civil Rights Division, U.S. Department of Justice in a | 6 | | prominent place that is clearly visible to both | 7 | | prospective and current employees. The employer must | 8 | | maintain the signed original of the attestation form | 9 | | prescribed by the IDOL, as well as all CBT certificates of | 10 | | completion and make them available for inspection or | 11 | | copying by the IDOL at any reasonable time. | 12 | | (c) It is a violation of this Act for an employer enrolled | 13 | | in an Employment Eligibility Verification System, including | 14 | | the E-Verify program and the Basic Pilot program: | 15 | | (1) to fail to display the notices supplied by DHS and | 16 | | OSC in a prominent place that is clearly visible to both | 17 | | prospective and current employees; | 18 | | (2) to allow any employee to use an Employment | 19 | | Eligibility Verification System prior to having completed | 20 | | CBT; | 21 | | (3) to fail to take reasonable steps to prevent an | 22 | | employee from circumventing the requirement to complete | 23 | | the CBT by assuming another employee's E-Verify or Basic | 24 | | Pilot user identification or password; | 25 | | (4) to use the Employment Eligibility Verification | 26 | | System to verify the employment eligibility of job |
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| 1 | | applicants prior to hiring or to otherwise use the | 2 | | Employment Eligibility Verification System to screen | 3 | | individuals prior to hiring and prior to the completion of | 4 | | a Form I-9; | 5 | | (5) to terminate an employee or take any other adverse | 6 | | employment action against an individual prior to receiving | 7 | | a final nonconfirmation notice from the Social Security | 8 | | Administration or the Department of Homeland Security; | 9 | | (6) to fail to notify an individual, in writing, of | 10 | | the employer's receipt of a tentative nonconfirmation | 11 | | notice, of the individual's right to contest the tentative | 12 | | nonconfirmation notice, and of the contact information for | 13 | | the relevant government agency or agencies that the | 14 | | individual must contact to resolve the tentative | 15 | | nonconfirmation notice; | 16 | | (7) to fail to safeguard the information contained in | 17 | | the Employment Eligibility Verification System, and the | 18 | | means of access to the system (such as passwords and other | 19 | | privacy protections). An employer shall ensure that the | 20 | | System is not used for any purpose other than employment | 21 | | verification of newly hired employees and shall ensure | 22 | | that the information contained in the System and the means | 23 | | of access to the System are not disseminated to any person | 24 | | other than employees who need such information and access | 25 | | to perform the employer's employment verification | 26 | | responsibilities. |
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| 1 | | (c-1) Any claim that an employer refused to hire, | 2 | | segregated, or acted with respect to recruitment, hiring, | 3 | | promotion, renewal or employment, selection for training or | 4 | | apprenticeship, discharge, discipline, tenure or terms, | 5 | | privileges, or conditions of employment without following the | 6 | | procedures of the Employment Eligibility Verification System, | 7 | | including the Basic Pilot and E-Verify programs, may be | 8 | | brought under paragraph (G)(2) of Section 2-102 of the | 9 | | Illinois Human Rights Act. | 10 | | (c-2) It is a violation of this Section for an individual | 11 | | to falsely pose as an employer in order to enroll in an | 12 | | Employment Eligibility Verification System or for an employer | 13 | | to use an Employment Eligibility Verification System to access | 14 | | information regarding an individual who is not an employee of | 15 | | the employer. | 16 | | (d) Preemption. Neither the State nor any of its political | 17 | | subdivisions, nor any unit of local government, including a | 18 | | home rule unit, may require any employer to use an Employment | 19 | | Eligibility Verification System, including under the following | 20 | | circumstances: | 21 | | (1) as a condition of receiving a government contract; | 22 | | (2) as a condition of receiving a business license; or | 23 | | (3) as penalty for violating licensing or other | 24 | | similar laws. | 25 | | This subsection (d) is a denial and limitation of home | 26 | | rule powers and functions under subsection (h) of Section 6 of |
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| 1 | | Article VII of the Illinois Constitution. | 2 | | (Source: P.A. 95-138, eff. 1-1-08; 96-623, eff. 1-1-10; | 3 | | 96-1000, eff. 7-2-10.) | 4 | | (820 ILCS 55/13 new) | 5 | | Sec. 13. Restrictions on the use of Employment Eligibility | 6 | | Verification Systems. | 7 | | (a) As used in this Section: | 8 | | "Employee's authorized representative" means an exclusive | 9 | | collective bargaining representative. | 10 | | "Inspecting entity" means the U.S. Immigration and Customs | 11 | | Enforcement, United States Customs and Border Protection, or | 12 | | any other federal entity enforcing civil immigration | 13 | | violations of an employer's I-9 Employment Eligibility | 14 | | Verification forms. | 15 | | (b) An employer shall not impose work authorization | 16 | | verification or re-verification requirements greater than | 17 | | those required by federal law. | 18 | | (c) If an employer contends that there is a discrepancy in | 19 | | an employee's employment verification information, the | 20 | | employer must provide the employee with: | 21 | | (1) The specific document or documents, if made | 22 | | available to the employer, that the employer deems to be | 23 | | deficient and the reason why the document or documents are | 24 | | deficient. Upon request by the employee or the employee's | 25 | | authorized representative, the employer shall give to the |
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| 1 | | employee the original document forming the basis for the | 2 | | employer's contention of deficiency within 7 business | 3 | | days. | 4 | | (2) Instructions on how the employee can correct the | 5 | | alleged deficient documents if required to do so by law. | 6 | | (3) An explanation of the employee's right to have | 7 | | representation present during related meetings, | 8 | | discussions, or proceedings with the employer, if allowed | 9 | | by a memorandum of understanding concerning the federal | 10 | | E-Verify system. | 11 | | (4) An explanation of any other rights that the | 12 | | employee may have in connection with the employer's | 13 | | contention. | 14 | | (d) When an employer receives notification from any | 15 | | federal or State agency, including, but not limited to, the | 16 | | Social Security Administration or the Internal Revenue | 17 | | Service, of a discrepancy as it relates to work authorization, | 18 | | the following rights and protections are granted to the | 19 | | employee: | 20 | | (1) The employer must not take any adverse action | 21 | | against the employee, including re-verification, based on | 22 | | the receipt of the notification. | 23 | | (2) The employer must provide a notice to the employee | 24 | | and, if allowed by a memorandum of understanding | 25 | | concerning the federal E-Verify system, to the employee's | 26 | | authorized representative, if any, as soon as practicable, |
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| 1 | | but not more than 5 business days after the date of receipt | 2 | | of the notification, unless a shorter timeline is provided | 3 | | for under federal law or a collective bargaining | 4 | | agreement. The notice to the employee shall include, but | 5 | | not be limited to: (i) an explanation that the federal or | 6 | | State agency has notified the employer that the employee's | 7 | | work authorization documents presented by the employee do | 8 | | not appear to be valid or reasonably relate to the | 9 | | employee; and (ii) the time period the employee has to | 10 | | contest the federal or State agency's determination. The | 11 | | employer shall notify the employee in person and deliver | 12 | | the notification by hand, if possible. If hand delivery is | 13 | | not possible, then the employer shall notify the employee | 14 | | by mail and email, if the email address of the employee is | 15 | | known, and shall notify the employee's authorized | 16 | | representative. Upon request by the employee or the | 17 | | employee's authorized representative, the employer shall | 18 | | give to the employee the original notice from the federal | 19 | | or State agency, including, but not limited to, the Social | 20 | | Security Administration or the Internal Revenue Service, | 21 | | within 7 business days. This original notice shall be | 22 | | redacted in compliance with State and federal privacy laws | 23 | | and shall relate only to the employee receiving the | 24 | | notification. | 25 | | (3) The employee may have a representative of the | 26 | | employee's choosing in any meetings, discussions, or |
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| 1 | | proceedings with the employer. | 2 | | The procedures described in this subsection do not apply | 3 | | to inspections of an employer's I-9 Employment Verification | 4 | | Forms by an inspecting entity or any relevant procedure | 5 | | otherwise described in subsection (g). | 6 | | (e) Except as otherwise required by federal law, an | 7 | | employer shall provide a notice to each current employee, by | 8 | | posting in English and in any language commonly used in the | 9 | | workplace, of any inspections of I-9 Employment Eligibility | 10 | | Verification forms or other employment records conducted by | 11 | | the inspecting entity within 72 hours after receiving notice | 12 | | of the inspection. Written notice shall also be given within | 13 | | 72 hours to the employee's authorized representative, if any. | 14 | | The posted notice shall contain the following information: | 15 | | (1) the name of the entity conducting the inspections | 16 | | of I-9 Employment Eligibility Verification forms or other | 17 | | employment records; | 18 | | (2) the date that the employer received notice of the | 19 | | inspection; | 20 | | (3) the nature of the inspection to the extent known | 21 | | by the employer; and | 22 | | (4) a copy of the notice received by the employer. | 23 | | An employer, upon reasonable request, shall provide an | 24 | | employee a copy of the Notice of Inspection of I-9 Employment | 25 | | Eligibility Verification forms. | 26 | | (f) On or before 6 months after the effective date of this |
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| 1 | | amendatory Act of the 103rd General Assembly, the Department | 2 | | shall develop a template posting that employers may use to | 3 | | comply with the requirements of subsection (e) to inform | 4 | | employees of a notice of inspection to be conducted of I-9 | 5 | | Employment Eligibility Verification forms or other employment | 6 | | records conducted by the inspecting entity. The Department | 7 | | shall make the template available on its website so that it is | 8 | | accessible to any employer. | 9 | | (g) Except as otherwise required by federal law, if during | 10 | | an inspection of the employer's I-9 Employment Eligibility | 11 | | Verification forms by an inspecting entity, the inspecting | 12 | | entity makes a determination that the employee's work | 13 | | authorization documents do not establish that the employee is | 14 | | authorized to work in the United States and provide the | 15 | | employer with notice of that determination, the employer shall | 16 | | provide a written notice as set forth in this subsection to the | 17 | | employee within 5 business days, unless a shorter timeline is | 18 | | provided for under federal law or a collective bargaining | 19 | | agreement. The employer's notice to the employee shall relate | 20 | | to the employee only. The employer shall notify the employee | 21 | | in person and deliver the notification by hand, if possible. | 22 | | If hand delivery is not possible, then the employer shall | 23 | | notify the employee by mail and email, if the email address of | 24 | | the employee is known, and shall notify the employee's | 25 | | authorized representative. The employer's notice to the | 26 | | employee shall contain the following information: |
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| 1 | | (1) an explanation that the inspecting entity has | 2 | | determined that the employee's work authorization | 3 | | documents presented by the employee do not appear to be | 4 | | valid or reasonably relate to the employee; | 5 | | (2) the time period for the employee to notify the | 6 | | employer whether the employee is contesting or not | 7 | | contesting the determination by the inspecting entity; | 8 | | (3) if known by the employer, the time and date of any | 9 | | meeting with the employer and employee or with the | 10 | | inspecting entity and employee related to the correction | 11 | | of the inspecting entity's determination that the | 12 | | employee's work authorization documents presented by the | 13 | | employee do not appear to be valid or reasonably relate to | 14 | | the employee; and | 15 | | (4) notice that the employee has the right to | 16 | | representation during any meeting scheduled with the | 17 | | employer and the inspecting entity. | 18 | | If the employee contests the inspecting entity's | 19 | | determination, the employer will notify the employee within 72 | 20 | | hours after receipt of any final determination by the | 21 | | inspecting entity related to the employee's work authorization | 22 | | status. Upon request by the employee or the employee's | 23 | | authorized representative, the employer shall give the | 24 | | employee the original notice from the inspecting entity within | 25 | | 7 business days. This original notice shall be redacted in | 26 | | compliance with State and federal privacy laws and shall |
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| 1 | | relate only to the employee receiving the notification. | 2 | | (h) This Section does not require a penalty to be imposed | 3 | | upon an employer or person who fails to provide notice to an | 4 | | employee at the express and specific direction or request of | 5 | | the federal government. In determining the amount of the | 6 | | penalty, the appropriateness of the penalty to the size of the | 7 | | business of the employer charged and the gravity of the | 8 | | violation shall be considered. The penalty may be recovered in | 9 | | a civil action brought by the Director in any circuit court. | 10 | | Upon request by the employee or the employee's authorized | 11 | | representative, the employer shall give the employee the | 12 | | original notice from the inspecting entity within 7 business | 13 | | days. | 14 | | (i) This Section applies to public and private employers. | 15 | | (j) Nothing in this Section shall be interpreted, | 16 | | construed, or applied to restrict or limit an employer's | 17 | | compliance with a memorandum of understanding concerning the | 18 | | use of the federal E-Verify system. | 19 | | (820 ILCS 55/15) (from Ch. 48, par. 2865) | 20 | | Sec. 15. Administration and enforcement. | 21 | | (a) The Director of Labor or his authorized representative | 22 | | shall administer and enforce the provisions of this Act. The | 23 | | Director of Labor may issue rules and regulations necessary to | 24 | | administer and enforce the provisions of this Act. | 25 | | (b) If an employee or applicant for employment alleges |
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| 1 | | that he or she has been denied his or her rights under this | 2 | | Act, he or she may file a complaint with the Department of | 3 | | Labor. The Department shall investigate the complaint and | 4 | | shall have authority to request the issuance of a search | 5 | | warrant or subpoena to inspect the files of the employer or | 6 | | prospective employer, if necessary. The Department shall | 7 | | attempt to resolve the complaint by conference, conciliation, | 8 | | or persuasion. If the complaint is not so resolved and the | 9 | | Department finds the employer or prospective employer has | 10 | | violated the Act, the Department may commence an action in the | 11 | | circuit court to enforce the provisions of this Act including | 12 | | an action to compel compliance. The circuit court for the | 13 | | county in which the complainant resides or in which the | 14 | | complainant is employed shall have jurisdiction in such | 15 | | actions. | 16 | | (c) If an employer or prospective employer violates this | 17 | | Act, an employee or applicant for employment may commence an | 18 | | action in the circuit court to enforce the provisions of this | 19 | | Act, including actions to compel compliance, where efforts to | 20 | | resolve the employee's or applicant for employment's complaint | 21 | | concerning the violation by conference, conciliation or | 22 | | persuasion under subsection (b) have failed and the Department | 23 | | has not commenced an action in circuit court to redress the | 24 | | violation. The circuit court for the county in which the | 25 | | complainant resides or in which the complainant is employed | 26 | | shall have jurisdiction in such actions. |
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| 1 | | (d) Failure to comply with an order of the court may be | 2 | | punished as contempt. In addition, the court shall award an | 3 | | employee or applicant for employment prevailing in an action | 4 | | under this Act the following damages: | 5 | | (1) Actual damages plus costs. | 6 | | (2) For a willful and knowing violation of this Act, | 7 | | $200 plus costs, reasonable attorney's fees, and actual | 8 | | damages. | 9 | | (3) For a willful and knowing violation of Section | 10 | | 12(c) or Section 12(c-2) of this Act, $500 per affected | 11 | | employee plus costs, reasonable attorney's attorneys’ | 12 | | fees, and actual damages. | 13 | | (4) For a willful and knowing violation of Section 13, | 14 | | a civil penalty of a minimum of $2,000 up to a maximum of | 15 | | $5,000 for a first violation and a civil penalty of a | 16 | | minimum of $5,000 up to a maximum of $10,000 for each | 17 | | subsequent violation per affected employee plus costs, | 18 | | reasonable attorney's fees, and actual damages. | 19 | | (e) Any employer or prospective employer or his agent who | 20 | | violates the provisions of this Act is guilty of a petty | 21 | | offense. | 22 | | (f) Any employer or prospective employer, or the officer | 23 | | or agent of any employer or prospective employer, who | 24 | | discharges or in any other manner discriminates against any | 25 | | employee or applicant for employment because that employee or | 26 | | applicant for employment has made a complaint to his employer, |
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| 1 | | or to the Director or his authorized representative, or | 2 | | because that employee or applicant for employment has caused | 3 | | to be instituted or is about to cause to be instituted any | 4 | | proceeding under or related to this Act, or because that | 5 | | employee or applicant for employment has testified or is about | 6 | | to testify in an investigation or proceeding under this Act, | 7 | | is guilty of a petty offense. | 8 | | (Source: P.A. 96-623, eff. 1-1-10.) |
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