In yet another twist causing employers to question their obligations regarding employment eligibility verification, on September 24, 2007, the United States Department of Justice ("DOJ") brought a civil action for declaratory and injunctive relief against the State of Illinois to enjoin the state from enforcing recent amendments to Illinois' Right to Privacy in the Workplace Act ("Act"). The amendments, effective January 1, 2008, effectively prohibit Illinois employers from enrolling in the federal government's voluntary E-Verify Program ("Program"). The DOJ suit seeks a declaration that the amendments to the Act are invalid, and seeks to enjoin the state from enforcing the amendments.

The Program (formerly known as "Basic Pilot") allows participating employers to have access to government immigration and social security databases to verify employment eligibility. Participating employers submit eligibility information from a newly hired employee's I-9 form within three days of hire, and if the applicant's data "matches" the records in the databases, the employer is so notified. If the databases do not "match" the applicant's information, the system issues a "tentative nonconfirmation" notice, and the employee can choose whether to contest the notice. If the employee contests the "nonconfirmation" notice, the federal government issues a final determination on the "nonconfirmation" within 10 working days. According to the lawsuit, about 750 employers in Illinois have participated in the Program, as Illinois was one of the test states for the Program due to the estimated high population of illegal aliens in the state. (The other test states were California, Florida, New York and Texas.) The Program is available to employers in all 50 states.

The amendments to the Act prohibit employers from using the Program until the Social Security Administration and Department of Homeland Security are able to resolve "99% of the tentative nonconfirmation notices they issue within three days." Because the government does not make a final determination within three days, the law effectively precludes employers in Illinois from enrolling in the Program. Moreover, under the new Act, employers cannot use the Program unless they meet certain training and posting requirements.

Interestingly, Illinois' new law goes against the grain of what other states are doing in this area. For instance, Georgia enacted an employment eligibility verification measure in 2006 that requires all public employers and their contractors to participate in the Program to verify the status of new hires, and sets forth specific timetables for public employers and their contractors to begin participating in the Program, depending upon size. The Texas legislature proposed legislation requiring mandatory participation in the Program by government entities and government contractors, with a provision that the government must terminate the contract if the contractor has ceased participation in the Program. Indiana proposed a law requiring, among other mandates, that all employers verify social security numbers "using that Social Security Number Verification System." And in February 2007, the California legislature introduced the Employment Verification Act of 2007, which would require employers to verify employees' social security numbers "via the federal Social Security Number Verification Service" and submit verification to the Franchise Tax Board. The act also imposes civil sanctions on employers if they fail to provide information or provide false information.

In its suit, the DOJ states that the Program's effectiveness depends on the ability of employers to participate, and that any obstacle to participation impedes the government's ability to fully evaluate and implement the Program. It points out that enforcement of Illinois' new Act may cause previously-enrolled Illinois employers to cease participation, and may cause employers with operations in multiple states including Illinois to decline or cease participation in the Program. The suit thus seeks a finding that the Act conflicts with and stands as an obstacle to Congressional purpose and objective, and is preempted under the Supremacy Clause of the United States Constitution and federal law, and seeks a permanent injunction against the state, prohibiting enforcement of the Act's new provisions.

We will keep you apprised of the status of this important lawsuit and on other developments in this ever-changing area of the law. Please contact any member of Schiff Hardin's Labor and Employment Group if you have any questions about Illinois' amendments to the Right to Privacy in the Workplace Act, the DOJ lawsuit seeking to void them, or other questions on this topic.