Starting January 1, 2025, Illinois employers using E-Verify have new requirements under the Illinois Right to Privacy in the Workplace Act (the “Act”) (Public Act 95-138). Amendments (Public Act 103-879) to the Act impose new obligations for employers, even beyond certain federal E-Verify requirements.

As set forth in the Illinois Department of Labor’s (“IDOL”) guidance for the new requirements, employers are not required to use E-Verify. However, employers who do choose to use E-Verify are encouraged to familiarize themselves with the IDOL website and the accuracy of E-Verify.

Under the Act, Employers that participate in E-Verify must:

• Display the following required notices in both English and Spanish:

• Right to Privacy in the Workplace/E-Verify poster.
• E-Verify Participation poster provided by the federal government. E-Verify Participation Poster English and Spanish
• Department of Justice Immigrant and Employee Rights Section Poster.

• Require all employees who use the system to participate in the required computer-based training.
• Prevent employees from circumventing the training.
• Not misuse the E-Verify in any way, including using the system for pre-screening or screening current employees.
• Safeguard the information in the system and prevent unauthorized access.
• Follow the notification and attestation requirements in the Act, which requires that upon initial enrollment in E-Verify or within 30 days of the effective date of January 1, 2025, an employer must file an attestation that they have received all the training materials, that they will do the required training, post the required notices, and retain all certifications of training for possible inspection.

The Act requires employers to follow certain steps if they believe an employee’s employment verification information is inaccurate:

• Employer must explain the specific deficiency to the employee.
• Provide the employee with instructions as to how to correct the deficiency.
• Explain the employee has a right to representation.
• Upon request, provide the original document that provides the basis for the deficiency within seven (7) business days.

When an employer receives a notification from a state or federal agency regarding a discrepancy, the Act requires that:

• Employers cannot take any adverse action, including re-verification, based on the notification.
• Employers must provide notice to the employee not more than five (5) business days after the receipt of notification.
• Employers must provide an explanation of the discrepancy, the time period to contest, and provide the original notice with seven (7) business days.
• Employers must provide notification to the employee’s representative within the same time frame.
• Notification should be delivered by hand, if possible, but if not possible, notice must be by mail and email.

If an employer receives notice of an upcoming inspection by an agency of I-9 forms or other related documents, the Act requires that:

• Employers must provide notice to all employees in all relevant languages within 72 hours of receipt of the notice.
• Employers must also provide written notice with 72 hours to an employee’s representative, when applicable.
• Notice should include details regarding the name of the conducting agency, the date the notice was received by the employer, the nature of the inspection and a copy of the notice. (IDOL is to prepare a template for this notification within six (6) months of January 1, 2025.)

If during an inspection, a problem is uncovered about a specific employee, the Act requires that:

• Employer must provide written notice to the employee and employee’s representative within five (5) business days.
• Notice should be provided in person and delivered by hand, if possible, or by mail and email.
• Notice should include a full explanation of the inspecting entity’s determination, the time period for the employee to notify the employer if the employee plans to contest the finding, the time and date of any upcoming meeting on the determination, and the employee’s right to representation.
• If the employee contests the determination, the employer must notify the employee within 72 hours after the receipt of a final determination. And, if the employee requests it, the employer must provide the original notice from the inspecting entity within seven (7) business days.

Lastly, the Act imposes strict penalties on employers for violations of the requirements:

• For a willful and knowing violation, an employer can be issued a civil penalty of a minimum of $2,000 up to a maximum of $5,000 for a first-time violation, and a minimum of $5,000 up to a maximum of $10,000 for additional violations. These penalties are in addition to any actual damages, as well as costs and attorney’s fees.