Only about 15 years since a federal judge declared the state couldn't ban the use of the system, Illinois lawmakers appear to have again moved to interfere with employers' ability to use the federal E-Verify system to screen out immigrants not legally authorized to work in the country.
And observers in employment and immigration law are warning the quietly approved new state law could leave employers in the state facing difficult legal choices, at best, and perhaps a dangerous legal Catch-22 in which they could face potentially catastrophic penalties from both the federal and state government, no matter which course they choose.
"I've been saying ever since this was first introduced that it is going to ban E-Verify the way it's written," said management-side employment lawyer Kimberly Ross. "There's no other way to read this law than as a ban, no matter what they say it was meant to be."
Kimberly Ross
| FordHarrison
This spring, Democratic lawmakers who dominate the Illinois General Assembly quietly passed legislation amending the state law known as the Right to Privacy in the Workplace Act. The legislation would affect employers' ability to use the E-Verify system when determining if job applicants or current employees have the legal ability to work in the U.S.
Known as SB0508, the legislation was passed with strong support from powerful labor unions and advocacy groups for immigrants. It was signed into law by Gov. JB Pritzker, also a Democrat, in August.
The law would take effect in January.
The bill's author and lead supporter, State Sen. Javier Loera Cervantes, D-Chicago, said the measure is intended to "protect marginalized workers from unfair enforcement action during their employment."
"Many immigrant employees have run into a problem where their documentation may have misinput their name with slight differences of dashes, spaces, letters with or without an accent, only to be flagged during their work verification process," Cervantes said in a release announcing the new law.
"With this law, we can correct bureaucratic errors that would otherwise be detrimental to their income and livelihoods. By adjusting the system to allow workers more time to correct issues with documentation, we can make a huge impact for marginalized workers across Illinois."
According to the text of the new law, employers in Illinois would be forbidden from imposing "work authorization verification ... requirements greater than those required by federal law."
The law also creates a list of new requirements on employers concerning what they can do if they learn a job applicant or current employee may not be authorized to work in the U.S. These include requirements to provide notice, certain documents and a lengthy opportunity to contest the violation notice.
Further, the law requires employers to provide at least seven days notice to workers before immigration or labor officials inspect the federal I-9 work authorization forms the company is required to keep on file for its workers.
And the law forbids employers from taking any "adverse employment action" against a worker, even after learning of a potential violation, until the Social Security Administration or the Department of Homeland Security provides the employer with a "final notice" that they cannot confirm the worker is eligible to work legally in the country.
Employers who are accused of violating the law could face lawsuits from the workers and enforcement actions from the Illinois Department of Labor. Penalties could run up to $5,000 for a first violation and up to $10,000 for later violations.
While the full impact of the law has yet to be determined, the language in the new law could quickly create a conflict between Illinois state law and federal law.
Under federal law, every employer in the U.S. is allowed to use the E-Verify system, operated by the U.S. Citizenship and Immigration Services, to screen job applicants and workers to determine their eligibility to work.
Federal law requires employers to verify their workers are legally authorized to work. Employers who knowingly hire illegal immigrants or others without proper documents or work authorization could face massive and potentially business-threatening penalties.
These can include fines of $3,000 per worker if federal immigration and labor officials establish they failed to verify I-9s, and penalties of $16,000 per worker if it is determined they knowingly hired those ineligible to work in the U.S.
Employers can also face jail time.
To ease the verification process, the federal government in the 1990s established the E-Verify system, allowing employers to compare information on an applicant's or employee's I-9 against federal immigration and Social Security databases.
Alleged concerns over the accuracy of the E-Verify system led Illinois Democrats in 2007 to attempt to prohibit Illinois employers from using E-Verify until the federal government could show the system returned confirmed and accurate information over 99% of the time.
That law, however, was struck by a federal judge in 2009, after the federal government sued the state because the state didn't have the authority under the U.S. Constitution's so-called federal supremacy clause to stop employers from exercising their rights granted by federal law.
The enactment of SB508 could again tee up the possibility of a similar challenge under the federal supremacy clause, said observers and critics of the law, including attorney Kimberly Ross, of the firm of FordHarrison, of Chicago.
While the new law doesn't explicitly forbid employers from using E-Verify, at best, the new law would make it next to impossible for virtually all Illinois employers to use the system and could effectively ban them from doing so.
Ross pointed to the language in the law which prohibits Illinois employers from using any employment eligibility verification systems which are not required by federal law.
The problem, Ross said, is that federal law doesn't require any employers to use E-Verify, unless they are federal contractors.
So, she said, the law, as written, all but bans nearly all Illinois employers from using E-Verify, unless they wish to risk the hefty fines under state law.
Lou Sandoval, president of the Illinois Chamber of Commerce, disputed that interpretation, saying he believes the law would merely block employers from using "any other system above and beyond E-Verify" when determining if their workers are legal.
He said these other systems often use other factors, similar to credit reports or tenant verification systems, to essentially blackball people who are otherwise eligible to work in Illinois.
Sandoval said the Illinois Chamber and other employer advocacy groups worked with lawmakers on the legislation.
No employer groups entered opposition to the legislation. Most officially took no position during legislative hearings.
"We're trying to weed out bad actors," Sandoval said. "We believe that E-Verify is a federal system that works and businesses in Illinois should adopt it."
Other business groups, including the Illinois Retail Merchants Association and the National Federation of Independent Business, either declined to comment on the law or did not respond to requests for comment.
Sandoval's words echoed those of the law's supporters, like Sen. Cervantes, who said the law was enacted with an understanding that employers are required to use E-Verify.
Ross said that understanding is badly misplaced.
She said she spoke with Cervantes' legislative staff and others, warning them that the language of the law doesn't match what Cervantes and other lawmakers were saying about the law's intent and its potential impact.
But she said those warnings fell on deaf ears. Now, Ross said the state has a new law that, either because of poor drafting or willfull intent, likely leaves Illinois standing in opposition to federal law once again.
She said the apparent conflict could have been avoided with simple alterations to make clear that Illinois employers are still free to use E-Verify.
Instead, Ross said Illinois employers now face a risky choice: Either choose to use E-Verify to abide by their responsibilities under federal law and risk enforcement actions by the state, or stop using E-Verify to abide by the new state law and risk potentially ruinous federal enforcement action.
"The (state) Department of Labor knows E-Verify isn't required by federal law, and they will be required to enforce this new law," said Ross.
But likewise, she said, federal immigration authorities will also continue to enforce federal work rules.
"And the Department of Homeland Security has no problem putting companies out of business for violating the law," Ross said.
The Record asked the Illinois Department of Labor how they interpreted SB0508, now known as Public Act 103-0879, and if Illinois employers faced a risk of enforcement action from the state for using E-Verify.
In response, a department spokesperson emailed a statement from IDOL Director Jane Flanagan saying: "IDOL will enforce Public Act 103-0879 when it takes effect on January 1, 2025. Although IDOL cannot offer employers legal advice, we will be working on general guidance on Public Act 103-0879 in advance of the effective date."
Other employment lawyers and HR bloggers who have discussed SB0508, however, have agreed with Ross's assessment that, at best, the new Illinois law leaves Illinois employers in a tough spot.
In a bulletin posted to their site, the law firm of Amundsen Davis, for instance, said the new law presents "a potential host of legal challenges that the Legislature will need to address in the coming months."
And HR administration firm Vensure, also in a bulletin on their site, warned that SB0508 amounts to an effective ban on the use of E-Verify.
Further backing those conclusions, the official description of the law on the Illinois General Assembly's site, as it existed on Sept. 9, 2024, said, under the law, "an employer shall not voluntarily enroll in the E-Verify program or a similar Electronic Employment Verification System."
Political organizations calling for immigration reform and stepped up enforcement of the country's immigration laws have begun to draw attention to the new Illinois law.
Ira Mehlman, spokesperson for the Federation for American Immigration Reform, said the law represents the latest efforts by Illinois Democrats to "protect illegal immigrants" at the expense of citizens and others living and working in the state legally.
Mehlman said his organization believes the law will almost certainly place Illinois in defiance of federal law and at risk of another loss in court.
"At best, this law creates a set of conditions where it makes it virtually impossible for employers to comply," Mehlman said. "So this is certainly something that could go to court when they (Illinois) attempt to enforce it."
Mehlman said, however, whether such a challenge would again come from the Department of Homeland Security through the USCIS under a potential Kamala Harris presidential administration would remain an open question. He said the challenge may need to come from employers themselves, should they face costly lawsuits from trial lawyers or an enforcement action from the state's Labor Department.
The USCIS did not respond to questions from The Record about the new Illinois law.