December 13, 2024
- After the Illinois governor signed it into law in August 2024, Senate Bill 0508 (SB0508) will take effect on January 1, 2025. Due to identity discrepancies, this Act will provide additional protection for individuals flagged during the employment eligibility verification (Form I-9) system. Its protections include discrepancies found by the E-Verify system.
According to Illinois’ Right to Privacy in the Workplace Act, employers had to notify employees of their intention to take adverse action due to a notification from an employment eligibility verification system. This notice explained how a discrepancy led to the adverse action, which typically concerned a disconnect with the individual’s Social Security Number and name. The Act also provided employees with certain rights if this discrepancy occurred.
Now, SB0508 specifies employee rights if their E-Verify case receives a tentative non-confirmation. For example, it bans employers from having work authorization requirements beyond what federal law mandates. SB0508 also addressed when employers find discrepancies in the employment verification information of an employee. Such cases require them to provide notices to the employee, such as the following:
- An explanation of the deficiency and the specific documents the employer reported as deficient
- If requested, the original document causing the claimed deficiency within seven business days, along with time to correct any documentation discrepancies
- Instructions explaining how to correct any alleged deficiencies if the law requires corrections
- An explanation of the employee’s right to have representation present during related meetings, discussions, or proceedings with their employer, if permitted by a memorandum of understanding concerning the federal E-Verify system
- An explanation of any other rights the employee may have concerning the employer’s claim
SB0508 also offers other rights and protections to employees. For example, it addressed when employers receive a notification from a state or federal agency concerning discrepancies related to work authorization. Such protections include the following:
- Employers cannot take any adverse action against an employee due to notification of a discrepancy.
- An employer must provide the employee with notice as soon as practicable. However, they must deliver the notice within five business days after receiving the discrepancy notification or sooner if required under federal law or a collective bargaining agreement.
- The notice must contain an explanation of the federal or state agency’s notification of discrepancy and how long the employee has to contest the determination made by the state or federal agency.
- Employees may have a representative of their choice in any discussions, proceedings, or meetings with their employer.
In addition, SB0508 includes provisions requiring employers to notify their current employees of any inspections that appear on I-9 forms or any other employment records by the inspecting entity. They must provide this notification within 72 hours by posting a notice in English or any other language commonly used in the workplace. The notice must contain the following information:
- The name of the entity conducting the inspection
- The date the employer received the notice
- The nature of the inspection as known by the employer and a copy of the notice the employer received
SB0508 requires the employer to notify any employee within five business days or less if the inspecting entity determines their authorization to work in the US and supplies a notice of the determination. This practice applies to those required by federal law or a collective bargaining agreement. The employer must provide the notice in person if possible. Otherwise, they may deliver it by email or mail. The notice must include the following:
- An explanation of the inspecting entity’s decision when an employee’s work authorization documents do not appear valid or related to the employee
- Information about the amount of time the employee has to inform the employer of their decision to contest or not contest the inspecting entity’s decision
- If the employer is aware of the time and date of any meeting with the employer and employee or with the inspecting entity and employee concerning the correction of the inspecting entity’s determination that the employee’s work authorization documents presented by the employee fail to appear to be valid or to be reasonably related to the employee
- Notice that the employee has the right to have representation present at any meeting scheduled with the inspecting entity and their employer
Employees may contest the inspecting agency’s determination concerning their work authorization. Following this action, employers will have 72 hours to notify the employee of a final determination.