Bill Text: IL SB1133 | 2009-2010 | 96th General Assembly | Enrolled

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Bill Title: Amends the Right to Privacy in the Workplace Act. Makes a technical change in a Section concerning prohibited inquiries.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2009-08-24 - Public Act . . . . . . . . . 96-0623 [SB1133 Detail]

Download: Illinois-2009-SB1133-Enrolled.html

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AN ACT concerning employment.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Right to Privacy in the Workplace Act is
amended by changing Sections 12 and 15 as follows:
(820 ILCS 55/12)
Sec. 12. Use Restrictions on use of Employment Eligibility
Verification Systems.
(a) Prior to choosing to voluntarily enroll in any
Electronic Employment Verification System, including the
E-Verify program and the Basic Pilot program, as authorized by
8 U.S.C. 1324a, Notes, Pilot Programs for Employment
Eligibility Confirmation (enacted by P.L. 104-208, div. C,
title IV, subtitle A), employers are urged to consult the
Illinois Department of Labor's website for current information
on the accuracy of E-Verify and to review and understand an
employer's legal responsibilities relating to the use of the
voluntary E-Verify program. Employers are prohibited from
enrolling in any Employment Eligibility Verification System,
including the Basic Pilot program, as authorized by 8 U.S.C.
1324a, Notes, Pilot Programs for Employment Eligibility
Confirmation (enacted by PL 104-208, div. C, title IV, subtitle
A), until the Social Security Administration (SSA) and

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Department of Homeland Security (DHS) databases are able to
make a determination on 99% of the tentative nonconfirmation
notices issued to employers within 3 days, unless otherwise
required by federal law.
(a-1) The Illinois Department of Labor (IDOL) shall post on
its website information or links to information from the United
States Government Accountability Office, Westat, or a similar
reliable source independent of the Department of Homeland
Security regarding: (1) the accuracy of the E-Verify databases;
(2) the approximate financial burden and expenditure of time
that use of E-Verify requires from employers; and (3) an
overview of an employer's responsibilities under federal and
state law relating to the use of E-Verify.
(b) Upon initial enrollment in an Employment Eligibility
Verification System or within 30 days after the effective date
of this amendatory Act of the 96th General Assembly, an
employer enrolled in E-Verify or any other Employment
Eligibility Verification System must attest, Subject to
subsection (a) of this Section, an employer who enrolls in the
Basic Pilot program is prohibited from the Employment
Eligibility Verification Systems, to confirm the employment
authorization of new hires unless the employer attests, under
penalty of perjury, on a form prescribed by the IDOL available
on the IDOL website Department of Labor:
(1) that the employer has received the Basic Pilot or
E-Verify training materials from the Department of

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Homeland Security (DHS) DHS, and that all employees
personnel who will administer the program have completed
the Basic Pilot or E-Verify Computer Based Tutorial (CBT);
and
(2) that the employer has posted the notice from DHS
indicating that the employer is enrolled in the Basic Pilot
or E-Verify program and , the anti-discrimination notice
issued by the Office of Special Counsel for
Immigration-Related Unfair Employment Practices (OSC),
Civil Rights Division, U.S. Department of Justice in a
prominent place that is clearly visible to both prospective
and current employees. The employer must maintain the
signed original of the attestation form prescribed by the
IDOL, as well as all CBT certificates of completion and
make them available for inspection or copying by the IDOL
at any reasonable time , and the anti-discrimination notice
issued by the Illinois Department of Human Rights (IDHR).
(c) It is a violation of this Act for an employer enrolled
in an Employment Eligibility Verification System, including
the E-Verify program and the Basic Pilot program:
Responsibilities of employer using Employment Eligibility
Verification Systems.
(1) to fail to The employer shall display the notices
supplied by DHS and , OSC, and IDHR in a prominent place
that is clearly visible to both prospective and current
employees; .

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(2) to allow any employee to use an Employment
Eligibility Verification System prior to having completed
CBT; The employer shall require that all employer
representatives performing employment verification queries
complete the CBT. The employer shall attest, under penalty
of perjury, on a form prescribed by the Department of
Labor, that the employer representatives completed the
CBT.
(3) to fail to take reasonable steps to prevent an
employee from circumventing the requirement to complete
the CBT by assuming another employee's E-Verify or Basic
Pilot user identification or password; The employer shall
become familiar with and comply with the Basic Pilot
Manual.
(4) to use the Employment Eligibility Verification
System to verify the employment eligibility of job
applicants prior to hiring or to otherwise use the
Employment Eligibility Verification System to screen
individuals prior to hiring and prior to the completion of
a Form I-9; The employer shall notify all prospective
employees at the time of application that such employment
verification system may be used for immigration
enforcement purposes.
(5) to terminate an employee or take any other adverse
employment action against an individual prior to receiving
a final nonconfirmation notice from the Social Security

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Administration or the Department of Homeland Security; The
employer shall provide all employees who receive a
tentative nonconfirmation with a referral letter and
contact information for what agency the employee must
contact to resolve the discrepancy.
(6) to fail to notify an individual, in writing, of the
employer's receipt of a tentative nonconfirmation notice,
of the individual's right to contest the tentative
nonconfirmation notice, and of the contact information for
the relevant government agency or agencies that the
individual must contact to resolve the tentative
nonconfirmation notice; The employer shall comply with the
Illinois Human Rights Act and any applicable federal
anti-discrimination laws.
(7) to fail to The employer shall use the information
it receives from SSA or DHS only to confirm the employment
eligibility of newly-hired employees after completion of
the Form I-9. The employer shall safeguard the this
information contained in the Employment Eligibility
Verification System, and the means of access to the system
it (such as passwords and other privacy protections). , An
employer shall to ensure that the System it is not used for
any other purpose other than employment verification of
newly hired employees and shall ensure as necessary to
protect its confidentiality, including ensuring that the
information contained in the System and the means of access

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to the System are it is not disseminated to any person
other than employees of the employer who need such
information and access it to perform the employer's
employment verification responsibilities; .
(c-1) Any claim that an employer refused to hire,
segregated, or acted with respect to recruitment, hiring,
promotion, renewal or employment, selection for training or
apprenticeship, discharge, discipline, tenure or terms,
privileges, or conditions of employment without following the
procedures of the Employment Eligibility Verification System,
including the Basic Pilot and E-Verify programs, may be brought
under paragraph (G)(2) of Section 2-102 of the Illinois Human
Rights Act;
(c-2) It is a violation of this Section for an individual
to falsely pose as an employer in order to enroll in an
Employment Eligibility Verification System or for an employer
to use an Employment Eligibility Verification System to access
information regarding an individual who is not an employee of
the employer.
(d) Preemption. Neither the State nor any of its political
subdivisions, nor any No unit of local government, including a
home rule unit, may require any employer to use an Employment
Eligibility Verification System, including under the following
circumstances:
(1) as a condition of receiving a government contract;
(2) as a condition of receiving a business license; or

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(3) as penalty for violating licensing or other similar
laws.
This subsection (d) is a denial and limitation of home rule
powers and functions under subsection (h) of Section 6 of
Article VII of the Illinois Constitution.
(Source: P.A. 95-138, eff. 1-1-08.)
(820 ILCS 55/15) (from Ch. 48, par. 2865)
Sec. 15. Administration and enforcement.
(a) The Director of Labor or his authorized representative
shall administer and enforce the provisions of this Act. The
Director of Labor may issue rules and regulations necessary to
administer and enforce the provisions of this Act.
(b) If an employee or applicant for employment alleges that
he or she has been denied his or her rights under this Act, he
or she may file a complaint with the Department of Labor. The
Department shall investigate the complaint and shall have
authority to request the issuance of a search warrant or
subpoena to inspect the files of the employer or prospective
employer, if necessary. The Department shall attempt to resolve
the complaint by conference, conciliation, or persuasion. If
the complaint is not so resolved and the Department finds the
employer or prospective employer has violated the Act, the
Department may commence an action in the circuit court to
enforce the provisions of this Act including an action to
compel compliance. The circuit court for the county in which

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the complainant resides or in which the complainant is employed
shall have jurisdiction in such actions.
(c) If an employer or prospective employer violates this
Act, an employee or applicant for employment may commence an
action in the circuit court to enforce the provisions of this
Act, including actions to compel compliance, where efforts to
resolve the employee's or applicant for employment's complaint
concerning the violation by conference, conciliation or
persuasion under subsection (b) have failed and the Department
has not commenced an action in circuit court to redress the
violation. The circuit court for the county in which the
complainant resides or in which the complainant is employed
shall have jurisdiction in such actions.
(d) Failure to comply with an order of the court may be
punished as contempt. In addition, the court shall award an
employee or applicant for employment prevailing in an action
under this Act the following damages:
(1) Actual damages plus costs.
(2) For a willful and knowing violation of this Act,
$200 plus costs, reasonable attorney's fees, and actual
damages.
(3) For a willful and knowing violation of Section
12(c) or Section 12(c-2) of this Act, $500 per affected
employee plus costs, reasonable attorneys’ fees, and
actual damages.
(e) Any employer or prospective employer or his agent who

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violates the provisions of this Act is guilty of a petty
offense.
(f) Any employer or prospective employer, or the officer or
agent of any employer or prospective employer, who discharges
or in any other manner discriminates against any employee or
applicant for employment because that employee or applicant for
employment has made a complaint to his employer, or to the
Director or his authorized representative, or because that
employee or applicant for employment has caused to be
instituted or is about to cause to be instituted any proceeding
under or related to this Act, or because that employee or
applicant for employment has testified or is about to testify
in an investigation or proceeding under this Act, is guilty of
a petty offense.
(Source: P.A. 87-807.)