News

It is a busy time for employment-related legal updates in Illinois, with Governor J.B. Pritzker recently approving various laws that expand employee protections and add new obligations for employers.

This Client Alert is part of a seven-part series discussing laws Illinois employers need to consider as we move toward 2025. Those laws include:

• amendments to the Illinois Day and Temporary Labor Services Act, which modify and build on 2023 amendments regarding equal pay and benefits for temporary workers (effective 8/9/24) (Client Alert here);
• amendments to the Illinois Human Rights Act expanding the statute of limitations to 2 years and adding new protected classes (effective 1/1/25) (Client Alert here);
• amendments to the Illinois Human Rights Act, which prohibit the discriminatory use of artificial intelligence and require employer notice of AI use in the workplace (effective 1/1/26) (Client Alert here);
• amendments to the Illinois Equal Pay Act governing pay transparency in job postings (effective 1/1/25) (Client Alert here);
• amendments to the Illinois Wage Payment and Collection Act, which expand pay stub requirements (effective 1/1/25) (Client Alert here);
• expanded scope of documents and protections under the Illinois Personnel Records Review Act (effective 1/1/25) (Client Alert here);
• a new Illinois Worker Freedom of Speech Act, which protects employees who decline to participate in certain employer-sponsored meetings on religious or political matters (effective 1/1/25) (Client Alert here);
• amendments to the Illinois Biometric Information Privacy Act, which limit damages for BIPA violations, among other things (effective 8/2/24) (Client Alert here); and
• amendments to the Illinois Right to Privacy in the Workplace Act, which regulate employer use of E-Verify and similar systems (effective 1/1/25) discussed below.

On August 9, 2024, Illinois Governor JB Pritzker signed Public Act 103-0879 into law, amending the Illinois Right to Privacy in the Workplace Act (RPWA). The amendments, which took effect on January 1, 2025, impose new requirements on employers related to verification of employee work authorization. While the law references E-Verify, many of the provisions apply to all Illinois employers, including those employers who do not use E-Verify or other employment verification systems.

Section 12(a) of the RPWA includes language that one could interpret as barring employers from using E-Verify if they are not required by federal law to use that system to determine work authorization status. The Illinois Department of Labor (IDOL) recently issued Frequently Asked Questions (FAQs) clarifying that “Illinois Law does not prohibit any employer from using E-Verify. However, employers who use E-Verify must follow the requirements of the Right to Privacy in the Workplace Act.” Illinois employers must ensure that their use of the federal E-Verify system or similar employment eligibility verification tool complies with both federal and state law.

The amendments also include the following:

• A prohibition against employers taking adverse employment actions based solely on the initial results of E-Verify or similar system before receiving final confirmation.
• A new requirement for employers to notify employees of their rights under E-Verify and similar systems. Similar to federal rules for E-Verify users, employers must provide written notice to employees, as well as the employee’s authorized representative (if allowed under E-Verify’s Memorandum of Understanding), regarding the use of these systems and notice of specific deficiencies in the employee’s documentation.
• Additional employee rights and protections when an employer receives notification from any federal or state agency of a discrepancy in relation to work authorization, for example a “mismatch” letter from the Social Security Administration.
• New requirements related to I-9 Employment Eligibility Verification government audits and investigations conducted by U.S. Immigration and Customs Enforcement (ICE).
• Employers must provide notice to each current employee of any inspections of I-9 forms or other employment records conducted by the inspecting entity within 72 hours after receiving notice of the inspection.
• If during an inspection of the employer’s I-9 forms, the inspecting entity determines that the employee’s work authorization documents do not establish that the employee is authorized to work in the United States and provides the employer with notice of that determination, the employer must provide a written notice of that determination to the employee within five (5) business days, unless a shorter timeline is provided for under federal law or a collective bargaining agreement.

It is important for employers to be aware of these new provisions, as a violation allows an employee or applicant for employment to commence action to enforce these provisions. If the employee or applicant prevails in court, they may be awarded actual damages plus costs along with additional monetary penalties.

Compliance Steps for Employers
We recommend employers take the following steps to ensure compliance with the new requirements.

• Evaluate how your Company currently uses E-Verify and similar systems to ensure compliance with both state and federal law.
• Ensure that all personnel involved in hiring and employment verification receive training on the new requirements and understand the proper procedures for handling discrepancies or challenges to verification results.
• Implement or update internal policies to ensure that the required records are maintained and readily accessible in case of an audit or dispute.
• Contact legal counsel immediately in the event of a government I-9 audit or other ICE inspection to ensure proper notices are provided to employees.

If you have any questions or need assistance in reviewing your employment verification procedures in light of these changes, please contact our Michael Best team to discuss compliance.