Illinois General Assembly - Full Text of SB0508
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Full Text of SB0508  103rd General Assembly

SB0508sam003 103RD GENERAL ASSEMBLY

Sen. Javier L. Cervantes

Filed: 10/23/2023

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 508

2    AMENDMENT NO. ______. Amend Senate Bill 508 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Right to Privacy in the Workplace Act is
5amended by changing Sections 12 and 15 and adding Section 13 as
6follows:
 
7    (820 ILCS 55/12)
8    Sec. 12. Use of Employment Eligibility Verification
9Systems.
10    (a) Prior to enrolling choosing to voluntarily enroll in
11any Electronic Employment Verification System, including the
12E-Verify program and the Basic Pilot program, as authorized by
138 U.S.C. 1324a, Notes, Pilot Programs for Employment
14Eligibility Confirmation (enacted by P.L. 104-208, div. C,
15title IV, subtitle A), employers are urged to consult the
16Illinois Department of Labor's website for current information

 

 

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1on the accuracy of E-Verify and to review and understand an
2employer's legal responsibilities relating to the use of the
3voluntary E-Verify program.
4    (a-1) The Illinois Department of Labor (IDOL) shall post
5on its website information or links to information from the
6United States Government Accountability Office, Westat, or a
7similar reliable source independent of the Department of
8Homeland Security regarding: (1) the accuracy of the E-Verify
9databases; (2) the approximate financial burden and
10expenditure of time that use of E-Verify requires from
11employers; and (3) an overview of an employer's
12responsibilities under federal and state law relating to the
13use of E-Verify.
14    (b) Upon initial enrollment in an Employment Eligibility
15Verification System or within 30 days after the effective date
16of this amendatory Act of the 96th General Assembly, an
17employer enrolled in E-Verify or any other Employment
18Eligibility Verification System must attest, under penalty of
19perjury, on a form prescribed by the IDOL available on the IDOL
20website:
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
13in an Employment Eligibility Verification System, including
14the 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,
2segregated, or acted with respect to recruitment, hiring,
3promotion, renewal or employment, selection for training or
4apprenticeship, discharge, discipline, tenure or terms,
5privileges, or conditions of employment without following the
6procedures of the Employment Eligibility Verification System,
7including the Basic Pilot and E-Verify programs, may be
8brought under paragraph (G)(2) of Section 2-102 of the
9Illinois Human Rights Act.
10    (c-2) It is a violation of this Section for an individual
11to falsely pose as an employer in order to enroll in an
12Employment Eligibility Verification System or for an employer
13to use an Employment Eligibility Verification System to access
14information regarding an individual who is not an employee of
15the employer.
16    (d) Preemption. Neither the State nor any of its political
17subdivisions, nor any unit of local government, including a
18home rule unit, may require any employer to use an Employment
19Eligibility Verification System, including under the following
20circumstances:
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
26rule powers and functions under subsection (h) of Section 6 of

 

 

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1Article VII of the Illinois Constitution.
2(Source: P.A. 95-138, eff. 1-1-08; 96-623, eff. 1-1-10;
396-1000, eff. 7-2-10.)
 
4    (820 ILCS 55/13 new)
5    Sec. 13. Restrictions on the use of Employment Eligibility
6Verification Systems.
7    (a) As used in this Section, "employee's authorized
8representative" means an exclusive collective bargaining
9representative.
10    (b) An employer shall not impose work authorization
11verification or re-verification requirements greater than
12those required by federal law.
13    (c) If an employer contends there is a discrepancy in an
14employee's employment verification information, the employer
15must provide the employee with:
16        (1) the specific document or documents that the
17    employer deems to be deficient and the reason why the
18    document or documents are deficient;
19        (2) instructions on how the employee can correct the
20    alleged deficient documents;
21        (3) an explanation of the employee's right to have
22    representation present during related meetings,
23    discussions, or proceedings with the employer; and
24        (4) an explanation of any other rights that the
25    employee may have in connection with the employer's

 

 

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1    contention.
2    (d) When an employer receives notification from any
3federal or State agency, including, but not limited to, the
4Social Security Administration or the Internal Revenue
5Service, of a discrepancy, the following rights and
6protections are granted to the employee:
7        (1) the employer must not take any adverse action
8    against the employee, including re-verification, based on
9    the receipt of the notification;
10        (2) the employer must provide a copy of the
11    notification to the employee and to the employee's
12    authorized representative, if any, as soon as practicable,
13    but not more than 3 business days after the date of receipt
14    of the notification. The notification shall be delivered
15    by hand at the workplace if possible and, if hand delivery
16    is not possible, by mail and email, if the email address of
17    the employee is known, and to the employee's authorized
18    representative; and
19        (3) the employee may have a representative of the
20    employee's choosing in any meetings, discussions, or
21    proceedings with the employer.
22    (e) Except as otherwise required by federal law, an
23employer shall provide a notice to each current employee, by
24posting in English and in any language commonly used in the
25workplace, of any inspections of I-9 Employment Eligibility
26Verification forms or other employment records conducted by

 

 

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1the U.S. Immigration and Customs Enforcement, United States
2Customs and Border Protection, or any other federal entity
3enforcing civil immigration violations within 72 hours after
4receiving notice of the inspection. Written notice shall also
5be given within 72 hours to the employee's authorized
6representative, if any. The posted notice shall contain the
7following information:
8        (1) the name of the entity conducting the inspections
9    of I-9 Employment Eligibility Verification forms or other
10    employment records;
11        (2) the date that the employer received notice of the
12    inspection;
13        (3) the nature of the inspection to the extent known
14    by the employer; and
15        (4) a copy of the notice received by the employer.
16    An employer, upon reasonable request, shall provide an
17employee a copy of the Notice of Inspection of I-9 Employment
18Eligibility Verification forms.
19    (f) On or before 6 months after the effective date of this
20amendatory Act of the 103rd General Assembly, the Department
21shall develop a template posting that employers may use to
22comply with the requirements of subsection (e) to inform
23employees of a notice of inspection to be conducted of I-9
24Employment Eligibility Verification forms or other employment
25records conducted by the U.S. Immigration and Customs
26Enforcement, United States Customs and Border Protection, or

 

 

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1any other federal entity enforcing civil immigration
2violations. The Department shall make the template available
3on its website so that it is accessible to any employer.
4    (g) Except as otherwise required by federal law, an
5employer shall provide to each current employee, and to the
6employee's authorized representative, if any, a copy of the
7written notice that provides the results of the inspection of
8I-9 Employment Eligibility Verification forms or other
9employment records within 72 hours after its receipt of the
10notice. Within 72 hours after its receipt of this notice, the
11employer shall also provide to each employee, and to the
12employee's authorized representative, if any, written notice
13of the obligations of the employer and the employee arising
14from the results of the inspection of I-9 Employment
15Eligibility Verification forms or other employment records.
16The notice shall relate to the employee only and shall be
17delivered by hand at the workplace if possible and, if hand
18delivery is not possible, by mail and email, if the email
19address of the employee is known, and to the employee's
20authorized representative. The notice shall contain the
21following information:
22        (1) a description of any and all deficiencies or other
23    items identified in the written immigration inspection
24    results notice related to the employee;
25        (2) the time period for correcting any potential
26    deficiencies identified by the U.S. Immigration and

 

 

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1    Customs Enforcement, United States Customs and Border
2    Protection, or any other federal entity enforcing civil
3    immigration violations;
4        (3) the time and date of any meeting with the employer
5    to correct any identified deficiencies; and
6        (4) notice that the employee has the right to
7    representation during any meeting scheduled with the
8    employer.
9    (h) This Section does not require a penalty to be imposed
10upon an employer or person who fails to provide notice to an
11employee at the express and specific direction or request of
12the federal government. In determining the amount of the
13penalty, the appropriateness of the penalty to the size of the
14business of the employer charged and the gravity of the
15violation shall be considered. The penalty may be recovered in
16a civil action brought by the Director in any circuit court.
17    (i) This Section applies to public and private employers.
18    (j) Nothing in this Section shall be interpreted,
19construed, or applied to restrict or limit an employer's
20compliance with a memorandum of understanding concerning the
21use of the federal E-Verify system.
 
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
25shall administer and enforce the provisions of this Act. The

 

 

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

 

 

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1violation. The circuit court for the county in which the
2complainant resides or in which the complainant is employed
3shall have jurisdiction in such actions.
4    (d) Failure to comply with an order of the court may be
5punished as contempt. In addition, the court shall award an
6employee or applicant for employment prevailing in an action
7under this Act the following damages:
8        (1) Actual damages plus costs.
9        (2) For a willful and knowing violation of this Act,
10    $200 plus costs, reasonable attorney's fees, and actual
11    damages.
12        (3) For a willful and knowing violation of Section
13    12(c) or Section 12(c-2) of this Act, $500 per affected
14    employee plus costs, reasonable attorney's attorneys’
15    fees, and actual damages.
16        (4) For a willful and knowing violation of Section 13,
17    a civil penalty of a minimum of $2,000 up to a maximum of
18    $5,000 for a first violation and a civil penalty of a
19    minimum of $5,000 up to a maximum of $10,000 for each
20    subsequent violation per affected employee plus costs,
21    reasonable attorney's fees, and actual damages.
22    (e) Any employer or prospective employer or his agent who
23violates the provisions of this Act is guilty of a petty
24offense.
25    (f) Any employer or prospective employer, or the officer
26or agent of any employer or prospective employer, who

 

 

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1discharges or in any other manner discriminates against any
2employee or applicant for employment because that employee or
3applicant for employment has made a complaint to his employer,
4or to the Director or his authorized representative, or
5because that employee or applicant for employment has caused
6to be instituted or is about to cause to be instituted any
7proceeding under or related to this Act, or because that
8employee or applicant for employment has testified or is about
9to testify in an investigation or proceeding under this Act,
10is guilty of a petty offense.
11(Source: P.A. 96-623, eff. 1-1-10.)".