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Illinois Blunts The E-Verify Juggernaut

by Brandon Meyer and Gregory Wald

Second-Time Lucky?

The State of Illinois shares one thing with Georgia, South Carolina, and Lancaster, California. All of these jurisdictions saw new e-Verify related laws take effect on January 1, 2010.1 However, the Illinois Privacy in the Workplace Act (SB1133) (IRPWA) differs from the e-Verify themed laws in these other jurisdictions.2 Whereas Georgia, South Carolina, and Lancaster, California have enacted legislation, that in varying degrees, mandates the more extensive use of this controversial system for verifying the work-authorized status of a company's employees, Illinois goes in an opposing direction. Ostensibly, the Illinois statute seeks employers to familiarize itself with the cost burden of e-Verify participation and the accuracy of the e-Verify database, while mandating training for all employees who administer a company's e-Verify program. An Employer must also notify its workforce of its participation in the e-Verify program. Most importantly, and perhaps most controversially, the Illinois statute provides employees and prospective employees with legal rights and remedies in the event an employer does not properly follow e-Verify procedures. As state and local governments stampede into adopting new e-Verify requirements in their respective jurisdictions, by adopting worker safeguards, Illinois is bucking the trend. This is not the first time that Illinois has sought to stand as a bulwark against the herd mentality toward the creeping universalization of e-Verify. Illinois' initial effort was brought to an abrupt halt by the full weight of the federal government and an injunction. Will Illinois' efforts be more successful this time?

Illinois Just Says "No"

Described by some as "Franz Kafka's Solution to Illegal Immigration,"3 e-Verify is seen by its proponents as the silver bullet for ending the "crisis" of illegal immigration in the United States by forcibly deputizing employers as immigration cops.4 E-Verify is supposed to prevent companies from employing unauthorized workers by verifying the information the employee supplies on their I-9 Form against databases maintained by the Social Security Administration ("SSA") and the Department of Homeland Security ("DHS"), among others. When an employee's eligibility cannot be verified, the e-Verify system gives the employee eight working days to contest e-Verify's "tentative non-confirmation." If the employee cannot do so within this time period, e-Verify will issue a "final non-confirmation, " requiring the employer to terminate the employee. E-Verify's total reliance on databases maintained by disparate bureaucracies and their alleged sanctity and total accuracy therein, worries many people. Inaccurate and incomplete information in any of the databases utilized by e-Verify can heavily impact the lives of those affected.

Garbage in, Garbage out. Outsourcing Effective Government to a Database.

Abdul Farouk Abdulmutallab's boarding of Northwest Airlines Flight 253 from Amsterdam to Detroit on December 25, 2009 when he should have been on the "no-fly list," and the revelation that Department of Labor's iCert portal database was unable to confirm the existence of well-established businesses that pay taxes to other branches of the U.S government, both serve as timely reminders of how government-maintained databases are neither uniform, 100% accurate, nor timely updated. After all, why was Mr. Abdulmutallab's visa not revoked? A spelling error committed by a State Department employee in searching a database to check if Mr. Abdulmutallab was actually issued a visa prevented his visa from being revoked.5 While the so-called "Six Sigma"6 principle may be good enough in product manufacturing or computer technology, it remains inadequate when innocent people are wrongfully deprived of their right to work by distant, faceless computer databases, which exist blissfully ignorant of their own inaccuracies.

In August 2007, Illinois attempted to address these concerns over the accuracy of e-Verify and its potential deleterious impact on the State's employers and employees alike. Illinois sought to prevent its employers from using e-Verify until the SSA and DHS databases were able to make a determination on 99 percent of the "tentative non-confirmation" notices issued by employers within three days.7 Since the SSA and DHS databases were unable to meet the Illinois criteria, Section 12(a) to the Illinois Right to Privacy in the Workplace Act (IRPWA) effectively barred Illinois employers from participating in the federal e-Verify program. While state and local governments competed to enact legislation increasing the scope and application of e-Verify, Illinois was effectively opting out. Illinois stood alone.

Illinois' efforts to safeguard the rights of its citizens did not escape the notice of DHS, who promptly sued Illinois in September 2007. DHS sought an injunction against implementation of Section 12(a) of the new law on the basis that the Illinois legislation violated the Supremacy Clause of the United States Constitution.8

Unfortunately, we will never learn whether or not Illinois' efforts to prohibit its employers from participating in e-Verify until it could prove its worth would have succeeded. Illinois agreed not to enforce Section 12(a) against its employers during the pendency of the lawsuit between DHS and the State.9 Thereafter, on March 12, 2009, the United States District Court of the Central District of Illinois agreed with DHS' argument that Section 12(a) violated the Supremacy Clause, and granted DHS motion for summary judgment.10 As a result, Illinois was permanently enjoined from enforcing Section 12(a). Illinois employers were free to choose whether or not they wanted to participate in e-Verify, privacy and accuracy concerns notwithstanding.

Not to be discouraged by DHS' diligent efforts to extract the teeth from the IRPWA, Illinois enacted a modified version that was signed into law in August 2009. Specifically, the revised Section 12(a) no longer bars participation in e-Verify but urges employers to consult the Illinois Department of Labor's website for current information regarding the accuracy of the program.

Additionally, employers are encouraged to review and understand their legal responsibilities relating to the use of the E-Verify Program.11 Section 12(b) prohibits the misuse of the e-Verify program and places certain training and recordkeeping requirements on the employer.12 The Act also requires an employer using the E-Verify Program to attest on a form prescribed by the Illinois Department of Labor that the:

  • Employer and all employees using the E-Verify Program have received the Basic Pilot or E-Verify Program training materials and completed the online computer-based training (CBT) provided by DHS;
  • Employer has posted in a place that is clearly visible the required notice from DHS indicating that the company is enrolled in the E-Verify Program;
  • Employer maintains the original signed attestation form, as well as all CBT certificates of completion and makes them available for copying and inspection at the request of the Department; and
  • Employer has posted in a place that is clearly visible the required anti-discrimination notice issued by the Office of Special Counsel for Immigrant-Related Unfair Employment Practices (OSC).

In an obvious effort to diffuse a future preemption challenge by the Feds, the IRPWA essentially codifies the primary employer obligations listed in the e-Verify Memorandum of Understanding and establishes violations for employers:

  • Failure to display the DHS and OSC notices in a prominent place visible to both employees and prospective employees;13
  • Allowing any employee to use e-Verify prior to completing the e-Verify CBT;14
  • Failure to take reasonable steps to prevent an employee from circumventing the CBT requirement by using another's e-Verify user name and password;15
  • Using the E-Verify Program to check the immigration status of current employees or to pre-screen prospective employees that have not been offered a position with the company;16
  • Terminate or take adverse employment action against an employee prior to that employee receiving a final non-confirmation notice from the Social Security Administration or the Department of Homeland Security;17
  • Failure to notify an employee, in writing, of the employer's receipt of a tentative nonconfirmation notice from the e-Verify system and employee's right to contest, including the relevant government agency contact information; and18
  • Failure to safeguard the information contained in the E-Verify program database.19

The IRPWA also penalizes an individual who falsely poses as an employer to gain access to the e-Verify system to obtain information about an individual that is not an employee.20 Contrary to recent legislation passed in other states such as Colorado and Arizona, the Illinois Act prohibits the State or any political subdivisions, including local governments, from requiring an employer to use e-Verify as a condition for receiving a government contract, business license or as a penalty for violating a law.21

An employee or applicant through a state court action can enforce by the Illinois Department of Labor or through a private right of action the Act. If a willful and knowing violation is upheld by the court, the court shall award the employee or applicant for employment $500 plus costs, reasonable attorneys' fees, and actual damages. Failure to comply with the order may be punished as contempt. In addition, the employer or his/her representative can be found guilty of a petty offense. A petty offense carries a maximum penalty of $1000.22

The Social Security Administration ("SSA") Shows The Way!

The authors understand that we are largely preaching to the converted when publishing criticisms of e-Verify in fora like Immigration Daily. However, sometimes true events occur that are stranger than fiction and should really give e-Verify advocates or agnostics food for thought. This would be the revelation that implementation of e-Verify by the SSA has been atrocious. According to an audit conducted by the SSA's Office of Inspector General, the SSA failed to check their new hires work eligibility through e-Verify about 20% of the time.23 When SSA bothered to use e-Verify, they failed to do so timely around 50% of the time.24 Just think if the SSA were an Illinois corporation with that rate of e-Verify non-compliance. Illinois would bankrupt the SSA for e-Verify administration violations long before the general Social Security program will bankrupt the United States.

If the SSA, which has enormous input and involvement in the E-Verify program, is patently unable to administer the program for its own employees, how can the private sector be expected to do better? The SSA's administration of its own internal e-Verify program provides a crystal clear example of the problems that Illinois is attempting to address with its e-Verify legislation.

The two rounds of Illinois legislation were part of a concerted effort by the legislature to protect its citizens and businesses from the unquestioned and untrammeled push toward universal e-Verify. The past and present legislation will help protect employee's rights until the program can deliver, if ever, what its proponents promise. However, the debacle at SSA foreshadows the future difficulties in adopting universal e-Verify. We anticipate additional forthcoming studies highlighting problems with e-Verify. In the meantime, Illinois bravely stands alone in trying to protect its citizens.

End Notes

1John Fay, "State and local E-Verify changes arriving with the New Year.", December 31, 2009.

2E-Verify traces its life to the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Public Law 104-208, div. C, title IV, subtitle A as codified by 8 U.S.C 1324A.

3Jim Harper, "Electronic Employment Eligibility Verification: Franz Kafka's Solution to Illegal Immigration." Cato Institute Policy Analysis, March 5, 2008.

4Of course U.S. employers were first deputized as immigration cops with the introduction of Form I-9 after 1986 amnesty, which has turned out to be an abysmal failure. E-Verify advocates have never adequately explained how e-Verify is to succeed where the I-9 failed.

5Jonathan Weisman and Siobhan Gorman, "Obama Orders Security Fix." The Wall Street Journal, January 8, 2010, A1.

6Six sigma is a technical term for processes that seek to remove errors and minimize variability from manufacturing or business processes at a rate of 99.99966%.

7Illinois P.A. 95-137, the Right to Privacy in the Workplace Act (IRPWA).

8In the September 2007 lawsuit, DHS only challenged the legality of the Section 12(a) language. Despite the fact that the rest of the amendments did not raise a legal challenge, the Illinois legislature nevertheless decided to amendment much of the original legislation in the new law that took effect on January 1, 2010.

9See "Notice for Illinois Employers About E-Verify," undated DHS press release.

10See United States v. The State of Illinois, No. 07-3261 (C.D. Ill. Mar 12, 2009).

11IRPWA, Section 12(a).

12IRPWA, Section 12(b).

13IRPWA, Section 12(c)(1).

14IRPWA, Section 12(c)(2).

15IRPWA, Section 12(c)(3).

16IRPWA, Section 12(c)(4).

17IRPWA, Section 12(c)(5).

18IRPWA, Section 12(c)(6).

19IRPWA, Section 12(c)(7).

20IRPWA, Section 12(c-2).

21IRPWA, Section 12(d).

22IRPWA, Section 12(d).

23Stephen Dinan, "Social Security rarely uses E-Verify," The Washington Times, January 18, 2010,, p.1.


About The Author

Brandon Meyer is an Attorney with International Immigration Services, P.A. in San Diego, CA and Naples, Florida.

Gregory Wald is an Attorney with Squire, Sanders & Dempsey in San Francisco, CA and Miami, Florida.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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