Full Text of SB0508 103rd General Assembly
SB0508sam003 103RD GENERAL ASSEMBLY | Sen. Javier L. Cervantes Filed: 10/23/2023 | | 10300SB0508sam003 | | LRB103 02960 SPS 64869 a |
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| 1 | | AMENDMENT TO SENATE BILL 508
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 508 by replacing | 3 | | everything after the enacting clause with the following: | 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 |
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| 1 | | on the accuracy of E-Verify and to review and understand an | 2 | | employer's legal responsibilities relating to the use of the | 3 | | voluntary E-Verify program. | 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, "employee's authorized | 8 | | representative" means an exclusive collective bargaining | 9 | | representative. | 10 | | (b) An employer shall not impose work authorization | 11 | | verification or re-verification requirements greater than | 12 | | those required by federal law. | 13 | | (c) If an employer contends there is a discrepancy in an | 14 | | employee's employment verification information, the employer | 15 | | must 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 | 3 | | federal or State agency, including, but not limited to, the | 4 | | Social Security Administration or the Internal Revenue | 5 | | Service, of a discrepancy, the following rights and | 6 | | protections 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 | 23 | | employer shall provide a notice to each current employee, by | 24 | | posting in English and in any language commonly used in the | 25 | | workplace, of any inspections of I-9 Employment Eligibility | 26 | | Verification forms or other employment records conducted by |
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| 1 | | the U.S. Immigration and Customs Enforcement, United States | 2 | | Customs and Border Protection, or any other federal entity | 3 | | enforcing civil immigration violations within 72 hours after | 4 | | receiving notice of the inspection. Written notice shall also | 5 | | be given within 72 hours to the employee's authorized | 6 | | representative, if any. The posted notice shall contain the | 7 | | following 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 | 17 | | employee a copy of the Notice of Inspection of I-9 Employment | 18 | | Eligibility Verification forms. | 19 | | (f) On or before 6 months after the effective date of this | 20 | | amendatory Act of the 103rd General Assembly, the Department | 21 | | shall develop a template posting that employers may use to | 22 | | comply with the requirements of subsection (e) to inform | 23 | | employees of a notice of inspection to be conducted of I-9 | 24 | | Employment Eligibility Verification forms or other employment | 25 | | records conducted by the U.S. Immigration and Customs | 26 | | Enforcement, United States Customs and Border Protection, or |
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| 1 | | any other federal entity enforcing civil immigration | 2 | | violations. The Department shall make the template available | 3 | | on its website so that it is accessible to any employer. | 4 | | (g) Except as otherwise required by federal law, an | 5 | | employer shall provide to each current employee, and to the | 6 | | employee's authorized representative, if any, a copy of the | 7 | | written notice that provides the results of the inspection of | 8 | | I-9 Employment Eligibility Verification forms or other | 9 | | employment records within 72 hours after its receipt of the | 10 | | notice. Within 72 hours after its receipt of this notice, the | 11 | | employer shall also provide to each employee, and to the | 12 | | employee's authorized representative, if any, written notice | 13 | | of the obligations of the employer and the employee arising | 14 | | from the results of the inspection of I-9 Employment | 15 | | Eligibility Verification forms or other employment records. | 16 | | The notice shall relate to the employee only and shall be | 17 | | delivered by hand at the workplace if possible and, if hand | 18 | | delivery is not possible, by mail and email, if the email | 19 | | address of the employee is known, and to the employee's | 20 | | authorized representative. The notice shall contain the | 21 | | following 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 | 10 | | upon an employer or person who fails to provide notice to an | 11 | | employee at the express and specific direction or request of | 12 | | the federal government. In determining the amount of the | 13 | | penalty, the appropriateness of the penalty to the size of the | 14 | | business of the employer charged and the gravity of the | 15 | | violation shall be considered. The penalty may be recovered in | 16 | | a 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, | 19 | | construed, or applied to restrict or limit an employer's | 20 | | compliance with a memorandum of understanding concerning the | 21 | | use 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 | 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 | 4 | | that he or she has been denied his or her rights under this | 5 | | Act, he or she may file a complaint with the Department of | 6 | | Labor. The Department shall investigate the complaint and | 7 | | shall have authority to request the issuance of a search | 8 | | warrant or subpoena to inspect the files of the employer or | 9 | | prospective employer, if necessary. The Department shall | 10 | | attempt to resolve the complaint by conference, conciliation, | 11 | | or persuasion. If the complaint is not so resolved and the | 12 | | Department finds the employer or prospective employer has | 13 | | violated the Act, the Department may commence an action in the | 14 | | circuit court to enforce the provisions of this Act including | 15 | | an action to compel compliance. The circuit court for the | 16 | | county in which the complainant resides or in which the | 17 | | complainant is employed shall have jurisdiction in such | 18 | | actions. | 19 | | (c) If an employer or prospective employer violates this | 20 | | Act, an employee or applicant for employment may commence an | 21 | | action in the circuit court to enforce the provisions of this | 22 | | Act, including actions to compel compliance, where efforts to | 23 | | resolve the employee's or applicant for employment's complaint | 24 | | concerning the violation by conference, conciliation or | 25 | | persuasion under subsection (b) have failed and the Department | 26 | | has not commenced an action in circuit court to redress the |
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| 1 | | violation. The circuit court for the county in which the | 2 | | complainant resides or in which the complainant is employed | 3 | | shall have jurisdiction in such actions. | 4 | | (d) Failure to comply with an order of the court may be | 5 | | punished as contempt. In addition, the court shall award an | 6 | | employee or applicant for employment prevailing in an action | 7 | | under 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 | 23 | | violates the provisions of this Act is guilty of a petty | 24 | | offense. | 25 | | (f) Any employer or prospective employer, or the officer | 26 | | or agent of any employer or prospective employer, who |
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| 1 | | discharges or in any other manner discriminates against any | 2 | | employee or applicant for employment because that employee or | 3 | | applicant for employment has made a complaint to his employer, | 4 | | or to the Director or his authorized representative, or | 5 | | because that employee or applicant for employment has caused | 6 | | to be instituted or is about to cause to be instituted any | 7 | | proceeding under or related to this Act, or because that | 8 | | employee or applicant for employment has testified or is about | 9 | | to testify in an investigation or proceeding under this Act, | 10 | | is guilty of a petty offense. | 11 | | (Source: P.A. 96-623, eff. 1-1-10.)". |
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