Illinois Adds Protections Regarding Identity “Mismatch” Notices

A new law in Illinois, Senate Bill 2339 – which was signed on December 12 and took effect immediately – requires employers to give employees time to correct identification-documentation discrepancies and prohibits employers from taking adverse action because of a discrepancy.

The federal E-Verify system compares the information provided by new hires on their Form I-9 against the databases of the Social Security Administration (SSA) and the Department of Homeland Security (DHS). Employers are then advised of the newly hired employee’s eligibility to work in the US. If discrepancies are found, immigrant workers may receive a mismatch letter for a variety of reasons. 

Illinois State Senator Javier Loera Cervantes said mismatches can occur for reasons that do not necessarily mean that the employee is not authorized to work in the United States, such as cases where an individual changed their name due to marriage. But “many employers terminate employees upon receiving this notice, even though they could be legally working in the United States,” he said.

Cervantes introduced SB 2339 to shield immigrant workers from discrimination based on their perceived immigration status. Under the law, the following new requirements are triggered if an employer receives a notification about a discrepancy involving an employee’s Taxpayer Identification Number or other identifying documents from any federal agency or outside vendor that is not responsible for enforcing immigration law, such as the SSA, the Internal Revenue Service or private insurance companies:

1. The employer is prohibited from terminating, suspending or taking any other adverse action just because of the notification.
2. The employer must notify the employee and any authorized representatives about the discrepancy as soon as practicable and no more than five business days after receiving the notification or determining that the employee must respond to the notification, whichever is longer. The notification must be delivered by hand, if possible; if not, then it must be delivered by mail and email. The notice to the employee must include:
   • An explanation that the employer has been notified that the employee’s identification documents do not appear to match;
   • The time period the employee has to contest the disputed information, if such a time period is required by federal law; and
   • Any action the employer requires the employee to take.
3. The employee may have a representative of their choosing in any meetings, discussions or proceedings with the employer.

A safe harbor waives penalties for employers or prospective employers that either:

• Act in good faith based on guidance issued by the Illinois Department of Labor (IDOL) or the federal DHS; or
• Make a bona fide administrative error that does not affect an employee or prospective employee’s employment or pay.

Employers that violate the new law face civil penalties of $100 to $1,000 per violation. Repeated violations may result in penalties of $1,000 to $5,000.

Workers who are denied a job or lose a job as a result of a violation may be entitled to reinstatement, back pay, a civil penalty of $10,000, attorney fees and other damages.