By: Dave Fowler
UPDATE: February 4, 2010
The Illinios Department of Labor has now posted the attestation form on their website at http://www.state.il.us/Agency/idol/forms/pdfs/attest.pdf. This new attestation form clarifies the requirements for employers utilizing an E-Verify Designated Agent.
IMPORTANT! The information in the new attestation form makes at least some of the information in the original blog post irrelevant.
Regarding the E-Verify Computer Based Training (CBT) requirement, the attestation form says the following:
Under penalty of perjury, I attest that:
1. (a) Employer has received the Basic Pilot or E-Verify training materials from the Department of Homeland Security (DHS) and all employees administering the program have completed the Computer Based Tutorial (CBT);
(b) Employer submits employment eligibility verification queries (EEVQs) via a Department of Homeland Security-approved Designated Agent, pursuant to a Memorandum of Understanding (MOU) among Employer, the Designated Agent and DHS.
Some of the information for this entry was taken from a blog entry posted January 11, 2010 by Ogletree Deakins, one of America's leading labor and employment law firms, at the Lexology website. The blog entry titled "New E-Verify law goes into effect" and covers the IL law.
Did you ever wonder if our elected officials and their staffs ever bothered to take the time to understand how something works or doesn't work or how things could be made better before they pass a law? In the case of the new Illinois law that imposes requirements on employers who use E-Verify and penalties on employers who violate the requirements, the answer is a resounding YES!
Keep in mind as you read this that when IL passed a law prohibiting its employers from using E-Verify, they were sued by the U.S. Department of Justice and the law went away.
The recently passed law amending the Illinois Right to Privacy in the Workplace Act places statutory obligations on employers that use E-Verify.
As of January 1, 2010, Illinois employers now are required to complete an attestation at the time of E-Verify enrollment. Employers are required to attest to the following:
- The employer and all its employees using E-Verify have received the E-Verify training materials and completed the online computer-based tutorial (CBT) training provided by the Department of Homeland Security (DHS).
- The employer has posted the required notice from DHS indicating that the company is enrolled in E-Verify in a place that is clearly visible.
- The 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 Illinois Department of Labor.
- The employer has posted the required anti-discrimination notice issued by the Office of Special Counsel for Immigrant-Related Unfair Employment Practices (OSC) in a place that is clearly visible. Employers already enrolled in E-Verify must sign the attestation before January 30, 2010.
This sounds easy enough, right? Posting the notices are already required by the E-Verify MOU (Memorandum of Understanding) that the employer signs to enroll in E-Verify. However, compliance with the other two requirements is more difficult and burdensome for the employer.
- The CBT training is only available to employers who use the E-Verify website. DHS does NOT make the training available to employers who use an E-Verify Service Provider (i.e., Designated Agent or DA) to submit E-Verify queries for them. Therefore, employers who use a DA will have trouble completing the CBT. DHS is working on a ppt deck for employers using a DA, but there are no plans to make the CBT available. So, the only way an employer using a DA can comply with the CBT requirement is to enroll to use the E-Verify website, take the training, and then not use the E-Verify website for submitting E-Verify queries. This is not a good solution for anyone.
- The employer can maintain the signed attestation form, but DHS does not really providee a 'Certificate of Completion' for the CBT. The only thing provided is a web page at the end of the training that says you passed and gives your score. So, this is just more paper an employer needs to retain for an audit that may never come unless IL is really going to spend the money to audit employers operating in the state.
So, how is an IL employer who uses a DA's electronic I-9/E-Verify service supposed to comply with the IL law since DHS does not make and has no plans to make the CBT available to these employers?
- Signup to use the E-Verify site and have your IL employees signing I-9s complete the CBT and print the completion page. Then only use the DA's I-9/E-Verify system to complete I-9s and E-Verify cases.
- Use a tool like Live Meeting and show your IL users the CBT, have them write down the answers, score the answers, and print out completion pages for those that pass and write their name on it.
- Screen capture the CBT, create a ppt, and require the test to be given and scored locally. Keep a printout of the completion page for those that pass.
- Finallly, you can opt to take the position that the requirement only applies to users who are actually using the E-Verify system (i.e., website) and that the law does not apply to users accessing E-Verify through a DA's third-party system.
THE ABOVE DO NOT REPRESENT RECOMMENDATIONS FROM TALX OR EVEN OPTIONS THAT MAKE SENSE FOR EMPLOYERS SINCE THEY MAY CAUSE MORE PROBLEMS THAN THEY SOLVE. EMPLOYERS MUST MAKE THEIR OWN DECISIONS ON WHAT TO DO REGARDING THE IL LAW.
The new law also prohibits employers that are enrolled in E-Verify from:
- Failing to display the notices supplied by DHS and OSC in a place clearly visible to both prospective and current employees.
- Allowing an employee to use the E-Verify system prior to having completed the CBT training.
- Allowing employees that have not taken the CBT training to use the E-Verify program under an employee's user identification or password that has taken the training.
- Using the E-Verify program as a pre-screening mechanism for prospective employees.
- Terminating an employee prior to that employee receiving a final non-confirmation notice from the Social Security Administration or DHS.
- Failing to notify the employee, in writing, of the employer’s receipt of a tentative nonconfirmation notice and of the employee’s right to contest that tentative non-confirmation letter.
- Failing to safeguard the information contained in the E-Verify program database.
These are all prohibitions that are already prohibited by the federal E-Verify laws and regulations so what's the point?
The law also prohibits an individual from falsely posing as an employer to enroll in E-Verify, and prohibits an employer from using E-Verify to access information regarding someone who is not an employee of the employer. This is a good thing. As I've pointed out before, DHS needs to have a credentialing process for employers and DAs to make sure employers are legitimate and DAs are qualified to serve as an agent for DHS and E-Verify.
Employees and applicants now have a private right of action based on an employer's violation of the Act. Here is an example of a state promoting unnecessary lawsuits. DHS already provides for an employee to contact the U.S. Department of Justice, Office of Special Council if they feel their rights have been violated by the employer. Under the IL law if an employee or applicant believes the Act has been violated they must:
- File a complaint with the Illinois Department of Labor.
- Under certain conditions, file a lawsuit in state court.
- The court may award $500 plus costs, attorney's fees, and actual damages.
- If the employer doesn't pay the employer can be held in contempt and=, found guilty of a petty offense, which carries a maximum penalty of $1,000.
The IL Department of Human Rights has been granted the power to investigate such claims under the IL Human Rights Act when an employee or applicant believes that the employer refused to hire the applicant or to promote, renew employment, or discharged, or disciplined the employee without following E-Verify procedures.
Visit the IL Department of Labor website for more information on the law.
A more cynical writer or reader might twist this new IL law into some kind of attempt by IL to 'get even' for being sued by the USDOJ for trying to prohibit the use of E-Verify? But, as everyone knows our elected officials would never do that. That would be a waste of the people's time, money, and resources. Our elected officials are there to protect us from those that would do us harm. They would never engage in playground politics like this. Would they?