HB4764 98TH GENERAL ASSEMBLY

LRB098 18744 JLS 53887 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB4764

Introduced , by Rep. Adam Brown

SYNOPSIS AS INTRODUCED:

820 ILCS 55/12

Amends the Right to Privacy in the Workplace Act. Requires every employer, after hiring an employee, to verify the employment eligibility of the employee through the E-Verify program. Provides that, in addition to any other requirement for an employer to receive a grant, loan, or performance-based incentive from any government entity, the employer shall register with and participate in the E-Verify program. Provides that before receiving the economic development incentive, the employer shall provide proof to the government entity that the employer is registered with and is participating in the E-Verify program. Provides that the State, its political subdivisions, and units of local government, including home rule units, shall require each employer to use an Employment Eligibility Verification System as a condition of receiving a government contract or a business license.

FISCAL NOTE ACT MAY APPLY

HOME RULE NOTE ACT MAY APPLY

STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

A BILL FOR

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 Section 12 as follows:

(820 ILCS 55/12)

Sec. 12. Use of Employment Eligibility Verification Systems required.

(a) On and after the effective date of this amendatory Act of the 98th General Assembly, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the E-Verify program. In addition to any other requirement for an employer to receive an economic development incentive from a government entity, the employer shall register with and participate in the E-Verify program. Before receiving the economic development incentive, the employer shall provide proof to the government entity that the employer is registered with and is participating in the E-Verify program. If the government entity determines that the employer is not complying with this subsection (a), the government entity shall notify the employer by certified mail of the government entity's determination of noncompliance and the employer's right to appeal the determination to the Department of Labor. On a final determination of noncompliance by the Department of Labor or court, if the decision of the Department of Labor is appealed under the Administrative Review Law, the employer shall repay all moneys received as an economic development incentive to the government entity within 30 days of the final determination. For the purposes of this subsection (a):

"Economic development incentive" means any grant, loan, or performance-based incentive from any government entity that is awarded on or after the effective date of this amendatory Act of the 98th General Assembly.

"Employee" means a person who is employed by an employer in consideration for direct or indirect monetary wages or profits or a person who volunteers his or her services for a non-profit entity.

"Employer" means a person, business, partnership, association, or corporation, including the State, unit of local government, or school district, trust, or non-profit entity, that employs the services of one or more individual persons.

"Government entity" means this State and any political subdivision of this State, including a home rule unit.

Every 3 months the Department of Labor shall request from the United States Department of Homeland Security a list of employers from this State that are registered with the E-Verify program. On receipt of the list of employers, the Department of Labor shall make the list available on the Department's website. 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.

(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, under penalty of perjury, on a form prescribed by the IDOL available on the IDOL website:

(1) that the employer has received the Basic Pilot or E-Verify training materials from the Department of Homeland Security (DHS), and that all employees 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.

(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:

(1) to fail to display the notices supplied by DHS and OSC in a prominent place that is clearly visible to both prospective and current employees;

(2) to allow any employee to use an Employment Eligibility Verification System prior to having completed 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;

(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;

(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 Administration or the Department of Homeland Security;

(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;

(7) to fail to safeguard the information contained in the Employment Eligibility Verification System, and the means of access to the system (such as passwords and other privacy protections). An employer shall ensure that the System is not used for any purpose other than employment verification of newly hired employees and shall ensure that the information contained in the System and the means of access to the System are not disseminated to any person other than employees who need such information and access 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. The Neither the State, nor any of its political subdivisions, and units nor any unit of local government, including a home rule units unit, shall may require each any employer to use an Employment Eligibility Verification System, including under the following circumstances:

(1) as a condition of receiving a government contract; or

(2) as a condition of receiving a business license; or

(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; 96-623, eff. 1-1-10; 96-1000, eff. 7-2-10.)