On March 12, 2009, a federal district court in Illinois ruled that a state law prohibiting employers from enrolling in the federal E-Verify program violates the Supremacy Clause of the United States Constitution. United States v Illinois, CDIll, No 07-3261 (Mar. 12, 2009). The Illinois Right to Privacy in the Workplace Act (Ill. P.A. 95-137), scheduled to take effect on January 1, 2008, amended the Illinois Right to Privacy Act by prohibiting employers in the state from enrolling in the E-Verify program until the Social Security Administration and the Department of Homeland Security (DHS) were able to achieve a 99% accuracy rating with regard to making a determination on tentative nonconfirmation notices within three days of issuance.

The DHS sued the State of Illinois to repeal the law saying that it interfered with an employer’s right to participate in the voluntary federal program to verify whether a potential employee has valid U.S. work authorization. The federal district court in Illinois sided with DHS, holding that the law is preempted by the Supremacy Clause. Even though the E-Verify program is not mandatory, the court reasoned that the state law frustrates Congress’ intent to make the program available to all employers. The district court enjoined the State of Illinois from enforcing the law.

This article was written by Jorge R. Lopez, a shareholder in Littler's Miami office.