The U.S. Justice Department has hauled Illinois into court once more, this time as the federal government seeks to strike down an Illinois law styled as a "workplace privacy law," but which the DOJ and others have said amounts to a state threat against employers who use the E-Verify system to screen out illegal immigrants not authorized to work in the U.S.
On May 1, the Justice Department filed suit in Chicago federal court against the state of Illinois over the so-called "Right to Privacy in the Workplace Act."
That lawsuit comes about a year since Democratic lawmakers who dominate Springfield and quietly passed the legislation, officially docketed as SB0508. Democratic Gov. JB Pritzker signed the legislation into law last August.
Illinois Attorney General Kwame Raoul
| kwameraoul.com
The law took effect at the beginning of 2025.
The new law affects 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.
The wording of the law and its likely affects have led critics of the legislation, and now, the Justice Department under President Donald Trump, to blast the law as a sly way of attempting to continue shielding illegal immigrants from federal immigration enforcement in Illinois.
"By imposing confusing rules during the employment verification process and threatening employers with penalties if they do not comply, SB0508 discourages and complicates the use of E-Verify and Form I-9 inspection requirements," the Justice Department wrote in a release announcing the lawsuit.
"The Department of Justice is committed to protecting American workers, employers, and enforcing federal immigration law," said U.S. Attorney General Pam Bondi in a statement included in the release.
"Any state that incentivizes illegal immigration and makes it harder for federal authorities to do their job will face legal consequences from this Administration."
The federal action against the Illinois law has been anticipated by many since the law was enacted, over the warnings of employment lawyers that the new law essentially means Illinois was again attempting to severely discourage, if not outright prohibit, the use of E-Verify by employers seeking to screen out illegal immigrants and protect themselves against federal immigration workplace enforcement actions.
Should employers choose to follow federal law, the state could penalize them. But if they opt to abide by state law, they faced the risk of penalties from the federal government.
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.
However, under the language added to the Illinois workplace privacy law by SB0508, 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.
"Not only are these fines inconsistent with federal law, but such advance notice requirements could prompt an alien employee to not show up to work on the day of inspection or avoid detection by immigration authorities," the Justice Department said in its release concerning its legal action.
In passing the law, SB0508's primary legislative sponsor, State Sen. Javier Cervantes, D-Chicago, said the law was intended to "protect marginalized workers from unfair enforcement action during their employment."
He has indicated a desire to further expand the protections for immigrant workers under the law.
The Justice Department's new lawsuit marks the second time in the last two decades that Illinois and the federal government have clashed in court over Illinois Democrats' efforts to limit or restrict the use of E-Verify.
In 2007, Illinois Democrats passed legislation prohibiting Illinois employers from using E-Verify. At the time, Democrats said they had concerns over the accuracy of the E-Verify system. Under that law, employers in Illinois were barred 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 down 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 federal supremacy clause to stop employers from using a system specifically authorized by federal law to attempt to ensure they were acting in compliance with federal immigration and labor laws.
In its new legal action, the Justice Department again argues Illinois has trespassed unconstitutionally on the authority of the federal government and is interfering with the ability of employers to ensure their workforces and hiring practices are in compliance with federal law.
The new lawsuit comes on top of a lawsuit brought earlier this year by the Trump DOJ against the state and governments of Cook County and the city of Chicago over their so-called "sanctuary" or "welcoming" laws, ordinances and policies. That action took aim at provisions in those laws and ordinances which generally forbid local and state police from cooperating with federal immigration enforcement efforts.
In that lawsuit, the Justice Department asserts state and local officials are using their local laws to effectively thumb their noses at federal immigration law.
In response, Illinois has not directly denied the Justice Department's accusations. Rather, Illinois Attorney General Kwame Raoul has argued states like Illinois have the constitutional authority to complicate federal agencies' immigration enforcement tasks, if the state so desires.
"... Yes, Illinois's choice may 'frustrate' implementation of 'federal schemes,' like the current federal executive's (President Donald Trump's) avowed commitment to conduct the largest mass deportation in American history," Raoul's office wrote in its March 4 response to the "Sanctuary"-related lawsuit.
"But this frustration is not obstacle preemption when the Tenth Amendment protects Illinois's sovereign right not to cooperate in the President's schemes."
Both legal actions by the Justice Department against the state of Illinois remain pending in federal court.