* Courthouse News…

The Department of Justice sued the state of Illinois, the Illinois Department of Labor, its director Jane Flanagan and Illinois Attorney General Kwame Raoul Thursday over a state workplace privacy law it says impedes on federal immigration authority.

The DOJ, in its lawsuit filed in the Northern District of Illinois, says Illinois’ Right to Privacy in the Workplace Act — specifically recently-enacted amendments to the bill, which went into effect on January 1 — usurps the federal government’s control of employment eligibility verification. […]

Federal immigration legislation created the E-Verify program, which allows employers to determine that a prospective employee is legally authorized to work in the U.S, in 2003. The program electronically compares the information from an employee’s I-9 form to records already available to the Social Security Administration and the U.S. Department of Homeland Security.

If the records don’t match, the E-Verify program notifies the employer and prompts further action to confirm employment eligibility, which typically entails the employee contacting the Department of Homeland Security or the Social Security Administration. If an employee can’t correct the mismatched information, they could be terminated.

The amendments to the Illinois law prevent employers in the state from terminating employees if their information doesn’t match other forms in the E-Verify program, and require employers to notify employees of their rights under E-Verify programs and similar systems.

* US Department of Justice…

Based on its enumerated constitutional and sovereign powers to conduct relations with foreign nations, the Federal Government has broad authority to establish immigration laws, the execution of which States cannot obstruct or take discriminatory actions against. Despite these prohibitions, the employment of unauthorized aliens by United States employers remains a substantial problem and encourages illegal entry into the country. Indeed, employment is one of the primary reasons aliens choose to enter the country illegally.

The United States’ complaint alleges SB0508 violates the Supremacy Clause of the U.S. Constitution, along with laws enacted by Congress to combat the employment of illegal aliens, including the Immigration Reform and Control Act of 1986, which prohibits employers from knowingly hiring, recruiting, referring, or employing aliens without appropriate work authorization.

Moreover, SB0508 imposes additional notification requirements on employers (at times delineating the time, place, and manner in which notification must be provided) and prohibitions that go beyond federal law. SB0508 also imposes sanctions on employers for failure to adhere to those requirements with civil fines as high as $10,000. Not only are these fines inconsistent with federal law, but such advance notice requirements could prompt an alien employee to not show up to work on the day of inspection or avoid detection by immigration authorities.

This isn’t the first time the DOJ has challenged Illinois’ immigration policies. In February, the Trump administration sued Illinois, the city of Chicago and Cook County over their sanctuary city laws.

* From the complaint…

As amended, SB0508 discourages the use of E-Verify, frustrates innovation of employment eligibility verification, and obfuscates E-Verify and Form I-9 inspection requirements by adding layers of protection for employees and imposing onerous and confusing notice requirements for Illinois employers beyond those required under the federal E-Verify program and the INA. Additionally, SB0508 allows the Illinois Department of Labor and employees to commence actions in an Illinois circuit court to enforce these new amendments. […]

In August 2024, Illinois enacted amendments to the state’s Right to Privacy in the Workplace Act (“the Workplace Act”). 2 The SB0508 amendments: (1) regulate Illinois employers’ use of employment eligibility verification systems; (2) impose restrictions on use of those systems; and (3) provide civil and criminal sanctions for any violations of SB0508. These amendments, which took effect on January 1, 2025 (enacted under Illinois Public Act 103-0879 (SB0508) (“SB0508”)), are preempted and should be enjoined because they violate the Supremacy Clause of the U.S. Constitution in at least three ways.

First, certain provisions of SB0508 are expressly preempted by 8 U.S.C. § 1324a(h)(2), which disallows any state or locality from imposing civil or criminal sanctions on employers of unauthorized aliens (other than through licensing and similar laws). Second, the challenged provisions of SB0508 are field preempted because they provide additional regulation in the field of administrative processes governing (1) Form I-9 documentation and inspection, (2) and E-Verify even though Congress has occupied the field. Third, the challenged provisions of SB0508 are conflict preempted by IRCA because SB0508 stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress—to root out unauthorized employment and to encourage an employer’s voluntary participation in E-Verify.

* The Lever in August…

This push for E-Verify aligns with mandates set by Project 2025, a nearly 900-page initiative for a second Trump presidency that seeks to reshape the federal government. The document argues that state or local governments receiving federal emergency aid should be required to use E-Verify to prove their employees’ documentation status. Additionally, the document states that “Congress should also permanently authorize E-Verify and make it mandatory.”

* SB508’s sponsor Sen. Javier Cervantes is working to expand the law to give more protections to immigrant employees. Press release…

“For many immigrant workers, the E-Verify system can be confusing and complicated,” said Cervantes (D-Chicago). “This initiative will give people the option to utilize legal support in communications with their employer so they are not taken advantage of, and establish the rights they are entitled to as legal, hardworking employees.”

Federal immigration law requires employers to verify the legal work status of their employees through the E-Verify system, which compares information from an employee’s I-9 Form to records available to the Department of Homeland Security and the Social Security Administration to confirm eligibility. If discrepancies are found, immigrant workers have the possibility of receiving a “no match” letter for a variety of reasons, including instances where the individual changed their name due to marriage. Many employers terminate employees upon receiving this notice, even though they could be legally working in the United States.

Last year, Cervantes passed legislation that required employers to give employees time to correct documentation discrepancies, and bar employers from taking any adverse action against the employee because of a discrepancy. This year, he is expanding on the law with his new legislation, Senate Bill 2339.

The new initiative would ensure that employees’ rights are protected if an employer has received notice of E-Verify document discrepancies, including the right to be free from adverse action solely because of a receipt of a discrepancy notice from a federal entity, the right to receive notice from the employer within five business days after their receipt of the notification, and more. It also would establish a procedure to resolve violations of these protections, and would create pathway for the employee to take legal action against the employer should these rights be violated.

Additionally, the measure would enable attorneys or others to act as an employee’s authorized representative with written notice to the employer in discussions of their E-Verify status. It would also require employers to provide an explanation of the employee’s right to have legal representation present during any meetings between the employee and the employer in notices sent between them.

These additions intend to strengthen the legal protections for employees facing E-Verify no match notifications, which can be a confusing process enflamed by hostile actions from their employers.

“Even with the new protections in place, employees may still face retaliatory action,” said Cervantes. “This initiative will ensure workers have the opportunity to fight against unjust treatment based on their E-Verify status, and advocate for the rights they are entitled to as workers in Illinois.”

Sen. Cervantes’ bill is awaiting House action.