Full Text of SB1133 96th General Assembly
SB1133eng 96TH GENERAL ASSEMBLY
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| AN ACT concerning employment.
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| Be it enacted by the People of the State of Illinois, | 3 |
| represented in the General Assembly:
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| 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) Prior to choosing to voluntarily enroll in any | 10 |
| Electronic Employment Verification
System, including the | 11 |
| E-Verify program and the Basic Pilot program, as authorized by | 12 |
| 8 U.S.C.
1324a, Notes, Pilot Programs for Employment | 13 |
| Eligibility Confirmation (enacted by P.L. 104-208, div. C, | 14 |
| title IV, subtitle A), employers are urged to carefully | 15 |
| consider: (1) that the E-Verify
databases contain inaccurate | 16 |
| information that prevents E-Verify from verifying the work
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| authorization status of many individuals who are in fact | 18 |
| eligible to work in the United States,
including many United | 19 |
| States citizens; (2) that employers who use E-Verify are | 20 |
| legally obligated
to expend time and resources to resolve | 21 |
| situations where, due to errors in the E-Verify databases,
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| E-Verify cannot verify the work authorization of employees who | 23 |
| are in fact authorized to work in
the United States; and (3) |
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| that employers who use E-Verify have specific legal | 2 |
| responsibilities set
forth by federal and state law that relate | 3 |
| to the use of E-Verify and the treatment of employees,
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| including the legal requirements set forth in this Act. | 5 |
| Employers are prohibited from enrolling in any Employment | 6 |
| Eligibility Verification System, including the Basic Pilot | 7 |
| program, as authorized by 8 U.S.C. 1324a, Notes, Pilot Programs | 8 |
| for Employment Eligibility Confirmation (enacted by PL | 9 |
| 104-208, div. C, title IV, subtitle A), until the Social | 10 |
| Security Administration (SSA) and Department of Homeland | 11 |
| Security (DHS) databases are able to make a determination on | 12 |
| 99% of the tentative nonconfirmation notices issued to | 13 |
| employers within 3 days, unless otherwise required by federal | 14 |
| law. | 15 |
| (a-1) The Illinois Department of Labor (IDOL) shall post on | 16 |
| its website information or
links to information from the United | 17 |
| States Government Accountability Office or a similar
reliable | 18 |
| source independent of the Department of Homeland Security | 19 |
| regarding: (1) the accuracy
of the E-Verify databases; (2) the | 20 |
| approximate financial burden and expenditure of time that use
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| of E-Verify requires from employers; and (3) an overview of an | 22 |
| employer's responsibilities under
federal and state law | 23 |
| relating to the use of E-Verify. | 24 |
| (b) Upon initial enrollment in an Employment Eligibility | 25 |
| Verification System or within
30 days after the effective date | 26 |
| of this amendatory Act of the 96th General Assembly, an
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| employer enrolled in E-Verify or any other Employment | 2 |
| Eligibility Verification System must
attest, Subject to | 3 |
| subsection (a) of this Section, an employer who enrolls in the | 4 |
| Basic Pilot program is prohibited from the Employment | 5 |
| Eligibility Verification Systems, to confirm the employment | 6 |
| authorization of new hires unless the employer attests, under | 7 |
| penalty of perjury, on a form prescribed by the IDOL available | 8 |
| on the IDOL website Department of Labor : | 9 |
| (1) that the employer has received the Basic Pilot or | 10 |
| E-Verify training materials from the Department of | 11 |
| Homeland Security (DHS) DHS , and that all employees | 12 |
| personnel who will administer the program have completed | 13 |
| the Basic Pilot or E-Verify Computer Based Tutorial (CBT); | 14 |
| and | 15 |
| (2) that the employer has posted the notice from DHS | 16 |
| indicating that the employer is enrolled in the Basic Pilot | 17 |
| or E-Verify program and , the anti-discrimination notice | 18 |
| issued by the Office of Special Counsel for | 19 |
| Immigration-Related Unfair Employment Practices (OSC), | 20 |
| Civil Rights Division, U.S. Department of Justice in a | 21 |
| prominent place that is clearly visible to both prospective | 22 |
| and current employees , and the anti-discrimination notice | 23 |
| issued by the Illinois Department of Human Rights (IDHR) . | 24 |
| (c) It is a violation of this Act for an employer enrolled | 25 |
| in an Employment Eligibility Verification System, including | 26 |
| the E-Verify program and the Basic Pilot program: |
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| Responsibilities of employer using Employment Eligibility | 2 |
| Verification Systems. | 3 |
| (1) to fail to The employer shall display the notices | 4 |
| supplied by DHS and , OSC , and IDHR in a prominent place | 5 |
| that is clearly visible to both prospective and current | 6 |
| employees ; . | 7 |
| (2) to allow any employee to use an Employment | 8 |
| Eligibility Verification System prior to having completed | 9 |
| CBT; The employer shall require that all employer | 10 |
| representatives performing employment verification queries | 11 |
| complete the CBT. The employer shall attest, under penalty | 12 |
| of perjury, on a form prescribed by the Department of | 13 |
| Labor, that the employer representatives completed the | 14 |
| CBT. | 15 |
| (3) to fail to take reasonable steps to prevent an | 16 |
| employee from circumventing the
requirement to complete | 17 |
| the CBT by assuming another employee's E-Verify or Basic | 18 |
| Pilot user
identification or password; The employer shall | 19 |
| become familiar with and comply with the Basic Pilot | 20 |
| Manual. | 21 |
| (4) to use the Employment Eligibility Verification | 22 |
| System to verify the
employment eligibility of job | 23 |
| applicants prior to hiring or to otherwise use the | 24 |
| Employment
Eligibility Verification System to screen | 25 |
| individuals prior to hiring and prior to the completion of
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| a Form I-9; The employer shall notify all prospective |
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| employees at the time of application that such employment | 2 |
| verification system may be used for immigration | 3 |
| enforcement purposes. | 4 |
| (5) to terminate an employee or take any other adverse | 5 |
| employment action against
a job applicant or employee prior | 6 |
| to receiving a final nonconfirmation notice from the Social
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| Security Administration or the Department of Homeland | 8 |
| Security; The employer shall provide all employees who | 9 |
| receive a tentative nonconfirmation with a referral letter | 10 |
| and contact information for what agency the employee must | 11 |
| contact to resolve the discrepancy. | 12 |
| (6) to fail to notify an employee or job applicant, in | 13 |
| writing, of the employer's
receipt of a tentative | 14 |
| nonconfirmation notice, of the individual's right to | 15 |
| contest the tentative
nonconfirmation notice, and of the | 16 |
| contact information for the relevant government agency or
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| agencies that the individual must contact to resolve the | 18 |
| tentative nonconfirmation notice; The employer shall | 19 |
| comply with the Illinois Human Rights Act and any | 20 |
| applicable federal anti-discrimination laws. | 21 |
| (7) to fail to The employer shall use the information | 22 |
| it receives from SSA or DHS only to confirm the employment | 23 |
| eligibility of newly-hired employees after completion of | 24 |
| the Form I-9. The employer shall safeguard the this | 25 |
| information contained in the Employment
Eligibility | 26 |
| Verification System , and the means of access to the system |
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| it (such as passwords and other privacy protections) . , An | 2 |
| employer shall to ensure that the System it is not used for | 3 |
| any other purpose other than employment verification of | 4 |
| newly hired employees and shall ensure as necessary to | 5 |
| protect its confidentiality, including ensuring that the | 6 |
| information contained in the
System and the means of access | 7 |
| to the System are it is not disseminated to any person | 8 |
| other than employees of the employer who need such | 9 |
| information and access it to perform the employer's | 10 |
| employment verification responsibilities ; . | 11 |
| (c-1) Any claim that an employer refused to hire, | 12 |
| segregated, or acted with respect to
recruitment, hiring, | 13 |
| promotion, renewal or employment, selection for training or | 14 |
| apprenticeship,
discharge, discipline, tenure or terms, | 15 |
| privileges, or conditions of employment without following
the | 16 |
| procedures of the Employment Eligibility Verification System, | 17 |
| including the Basic Pilot and
E-Verify programs, may be brought | 18 |
| under paragraph (G)(2) of Section 2-102 of the Illinois
Human | 19 |
| Rights Act; | 20 |
| (c-2) It is a violation of this Section for an individual | 21 |
| to falsely pose as an employer in
order to enroll in an | 22 |
| Employment Eligibility Verification System or for an employer | 23 |
| to use an
Employment Eligibility Verification System to access | 24 |
| information regarding an individual who is
not an employee of | 25 |
| the employer. | 26 |
| (d) Preemption. Neither the State nor any of its political |
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| subdivisions, nor any No unit of local government, including a | 2 |
| home rule unit, may require any employer to use an Employment | 3 |
| Eligibility Verification System, including under the following | 4 |
| circumstances: | 5 |
| (1) as a condition of receiving a government contract; | 6 |
| (2) as a condition of receiving a business license; or | 7 |
| (3) as penalty for violating licensing or other similar | 8 |
| laws. | 9 |
| This subsection (d)
is a denial and limitation of home rule | 10 |
| powers and functions under subsection (h) of Section 6 of | 11 |
| Article VII of the Illinois Constitution.
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| (Source: P.A. 95-138, eff. 1-1-08.)
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| (820 ILCS 55/15) (from Ch. 48, par. 2865)
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| Sec. 15. Administration and enforcement.
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| (a) The Director of Labor or his authorized representative | 16 |
| shall
administer and enforce the provisions of this Act. The | 17 |
| Director of Labor
may issue rules and regulations necessary to | 18 |
| administer and enforce the
provisions of this Act.
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| (b) If an employee or applicant for employment alleges that | 20 |
| he or she
has been denied his or her rights under this Act, he | 21 |
| or she may file a
complaint with the Department of Labor. The | 22 |
| Department shall investigate
the complaint and shall have | 23 |
| authority to request the issuance of a search
warrant or | 24 |
| subpoena to inspect the files of the employer or prospective
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| employer, if necessary. The Department shall attempt to resolve |
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| the
complaint by conference, conciliation, or persuasion. If | 2 |
| the complaint is
not so resolved and the Department finds the | 3 |
| employer or prospective
employer has violated the Act, the | 4 |
| Department may commence an action in the
circuit court to | 5 |
| enforce the provisions of this Act including an action to
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| compel compliance. The circuit court for the county in which | 7 |
| the
complainant resides or in which the complainant is employed | 8 |
| shall have
jurisdiction in such actions.
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| (c) If an employer or prospective employer violates this | 10 |
| Act, an
employee or applicant for employment may commence an | 11 |
| action in the circuit
court to enforce the provisions of this | 12 |
| Act, including actions to compel
compliance, where efforts to | 13 |
| resolve the employee's or applicant for
employment's complaint | 14 |
| concerning the violation by conference, conciliation
or | 15 |
| persuasion under subsection (b) have failed and the Department | 16 |
| has not
commenced an action in circuit court to redress the | 17 |
| violation. An employee or applicant for employment may directly | 18 |
| commence an
action in the circuit court to enforce subsection | 19 |
| (c) of Section 12 or subsection (c-2) of Section 12 of this Act | 20 |
| without first
filing a complaint with the Department of Labor. | 21 |
| The circuit
court for the county in which the complainant | 22 |
| resides or in which the
complainant is employed shall have | 23 |
| jurisdiction in such actions.
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| (d) Failure to comply with an order of the court may be | 25 |
| punished as
contempt. In addition, the court shall award an | 26 |
| employee or applicant for
employment prevailing in an action |
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| under this Act the following damages:
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| (1) Actual damages plus costs.
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| (2) For a willful and knowing violation of this Act, | 4 |
| $200 plus costs,
reasonable attorney's fees, and actual | 5 |
| damages.
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| (3) For a violation of Section 12(c) or Section 12(c-2) | 7 |
| of this Act, $500 per
affected employee plus costs, | 8 |
| reasonable attorneys’ fees, and actual damages. | 9 |
| (e) Any employer or prospective employer or his agent who | 10 |
| violates the
provisions of this Act is guilty of a petty | 11 |
| offense.
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| (f) Any employer or prospective employer, or the officer or | 13 |
| agent of any
employer or prospective employer, who discharges | 14 |
| or in any other manner
discriminates against any employee or | 15 |
| applicant for employment because that
employee or applicant for | 16 |
| employment has made a complaint to his employer,
or to the | 17 |
| Director or his authorized representative, or because that
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| employee or applicant for employment has caused to be | 19 |
| instituted or is
about to cause to be instituted any proceeding | 20 |
| under or related to this
Act, or because that employee or | 21 |
| applicant for employment has testified or
is about to testify | 22 |
| in an investigation or proceeding under this Act, is
guilty of | 23 |
| a petty offense.
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| (Source: P.A. 87-807.)
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