S-3114

   Amend Senate File 516 as follows:
   1.  By striking everything after the enacting clause and inserting: 
   <Section 1.  NEW SECTION.  95.1  Definitions.
   As used in this chapter, unless the context otherwise requires:
   1.  “Agency” means an agency, department, board, or commission of this state or a political subdivision that issues a license for purposes of operating a business in this state.
   2.  “Department” means the department of workforce development.
   3.  “Economic development incentive” means a grant, loan, or performance-based incentive awarded by a government entity of this state. “Economic development incentive” includes a tax credit or tax incentive program if the tax credit or tax incentive program requires an application to a government entity by an employer on or after July 1, 2019.
   4.  “Employ” means hiring or continuing to employ an individual to perform services.
   5.  “Employee” means an individual who is paid wages by an employer for service in employment in this state. “Employee” does not include an independent contractor.
   6.  “Employer” means an employer, as defined in section 96.19, that has a license issued by an agency in this state. 
   7.  “Employment” means the same as defined in section 96.19.
   8.  “E-verify program” means the employment verification program as jointly administered by the United States department of homeland security and the United States social security administration.
   9.  “Government entity” means this state or a political subdivision of this state that receives and uses tax revenues.
   10.  “Independent contractor” means the same as described in rules adopted by the department for purposes of administration of chapter 96.
   11.  “Knowingly employ an unauthorized alien” means the actions described in 8 U.S.C. §1324a, and shall be interpreted consistently with 8 U.S.C. §1324a and any applicable federal regulations.
   12.  “License” means a permit, certificate, approval, registration, charter, or similar form of authorization, other than a professional license, that is required by law and that is issued by an agency, allowing the licensee to do business in this state.
   13.  “Unauthorized alien” means an alien who does not have the legal right or authorization under federal law to work in the United States as described in 8 U.S.C. §1324a(h)(3).
   14.  “Wages” means the same as defined in section 96.19.
   Sec. 2.  NEW SECTION.  95.2  Knowingly employing unauthorized aliens.
   1.  Knowingly employing unauthorized aliens prohibited.  An employer shall not knowingly employ an unauthorized alien. If an employer uses a contract, subcontract, or other independent contractor, the employer shall not contract with a person the employer knows to be an unauthorized alien or with a contractor, subcontractor, or independent contractor who the employer knows is employing an unauthorized alien.
   2.  Complaints —— department action.  A county attorney, local law enforcement official, or member of the public may file a complaint of a violation of subsection 1 with the department. If the department finds, based on evidence included with the complaint or on evidence gathered by the department, that an employer has violated subsection 1, the department shall provide the employer with written notice of the department’s finding and the penalties ordered to be imposed pursuant to this chapter. Upon service of such notice, the department’s order shall be treated as a contested case under chapter 17A.
   3.  Department order —— first violation.  On a finding of a first violation as described in subsection 6, the department shall order all of the following:
   a.  The employer shall terminate the employment of all unauthorized aliens. The employer shall be required to file a signed sworn affidavit with the department within three business days after the order is issued. The affidavit shall state that the employer has terminated the employment of all unauthorized aliens in this state and that the employer will not knowingly employ an unauthorized alien in this state.
   b.  (1)  The employer shall be subject to a three-year probationary period.
   (2)  During the probationary period, the employer shall file quarterly reports on the form prescribed in section 252G.3 with the department for each new employee who is hired by the employer.
   (3)  The employer shall pay the department an annual workforce licensing fee in the amount of five thousand dollars for the probationary period.
   c.  The employer shall repay all moneys received as an economic development incentive during the two years prior to the violation to the government entity that awarded the economic development incentive within thirty days.
   4.  Department order —— second violation.  On a finding of a second violation as described in subsection 6, the department shall order all of the following:
   a.  The employer shall terminate the employment of all unauthorized aliens. The employer shall be required to file a signed sworn affidavit with the department within three business days after the order is issued. The affidavit shall state that the employer has terminated the employment of all unauthorized aliens in this state and that the employer will not knowingly employ an unauthorized alien in this state.
   b.  (1)  The employer shall be subject to an additional six-year probationary period.
   (2)  During the probationary period, the employer shall file quarterly reports on the form prescribed in section 252G.3 with the department for each new employee who is hired by the employer.
   (3)  The employer shall pay the department an annual workforce licensing fee in the amount of five thousand dollars for the probationary period.
   c.  The employer shall repay all moneys received as an economic development incentive during the two years prior to the violation to the government entity that awarded the economic development incentive within thirty days.
   5.  Department order —— third violation.  On a finding of a third violation as described in subsection 6, the department shall order all of the following:
   a.  The appropriate agencies shall permanently revoke all licenses that are held by the employer. On receipt of the order, the appropriate agencies shall revoke the licenses according to the department’s order within three business days.
   b.  The employer shall repay all moneys received as an economic development incentive during the two years prior to the violation to the government entity that awarded the economic development incentive within thirty days.
   6.  Violations defined.
   a.  A violation shall be considered a first violation by an employer if the violation did not occur during a probationary period ordered by the department under subsection 3, paragraph “b”, or subsection 4, paragraph “b”.
   b.  A violation shall be considered a second violation by an employer if the violation occurred during a probationary period ordered by the court under subsection 3, paragraph “b”.
   c.  A violation shall be considered a third violation by an employer if the violation occurred during a probationary period ordered by the court under subsection 4, paragraph “b”.
   7.  Department report to immigration and customs enforcement.  Upon exhaustion of an employer’s right of administrative and judicial appeal of a final order by the department pursuant to this chapter, the department shall report the name and contact information of the employer and the department’s findings to United States immigration and customs enforcement.
   8.  Federal determination creates rebuttable presumption.  In determining whether an employee is an unauthorized alien, the department shall consider the federal government’s determination of the immigration status of the employee pursuant to 8 U.S.C. §1373(c). The department may take notice of the federal government’s determination. The federal government’s determination that the employee is an unauthorized alien creates a rebuttable presumption of the employee’s unauthorized status. The employer may present evidence that the employee is not an unauthorized alien.
   9.  Good-faith compliance.  For the purposes of this section, an employer that establishes that it has complied in good faith with the requirements of 8 U.S.C. §1324a(b) establishes a conclusive affirmative defense that the employer did not knowingly employ an unauthorized alien. An employer is considered to have complied with the requirements of 8 U.S.C. §1324a(b), notwithstanding an isolated, sporadic, or accidental technical or procedural failure to meet the requirements, if there is a good-faith attempt to comply with the requirements. For purposes of this subsection, “good-faith attempt to comply” means an employer to which all of the following apply with respect to an employee hired or rehired by the employer:
   a.  The employer made a bona fide attempt to meet the requirements for completion of the form I-9 for the employee found in 8 C.F.R. §274a.2(a)(3), as amended through January 1, 2019.
   b.  The employer was a participating employer in the e-verify program at the time the employee was hired or rehired.
   c.  The employer can demonstrate that the employer attempted to verify the employment eligibility of the employee through the e-verify program.
   10.  Entrapment as affirmative defense.
   a.  It is an affirmative defense to a violation of subsection 1 that the employer was entrapped. To claim entrapment, the employer must admit by the employer’s testimony or other evidence the substantial elements of the violation. An employer who asserts an entrapment defense has the burden of proving all of the following by a preponderance of the evidence:
   (1)  The idea of committing the violation started with law enforcement officers or their agents rather than with the employer.
   (2)  The law enforcement officers or their agents urged and induced the employer to commit the violation.
   b.  An employer does not establish entrapment if the employer was predisposed to violate subsection 1 and the law enforcement officers or their agents merely provided the employer with an opportunity to commit the violation. The conduct of law enforcement officers and their agents may be considered in determining if an employer has proven entrapment.
   Sec. 3.  NEW SECTION.  95.3  E-verify program —— employer participation —— economic development incentives from government entities —— appropriation.
   1.  An employer who employs four or more employees in the state shall, after hiring or rehiring an employee, verify the employment eligibility of the employee through the e-verify program, certify to the department that the employer has done so, and keep a record of the verification for the duration of the employee’s employment or at least three years, whichever is longer. The certification shall be considered a record under section 96.11, subsection 6, and rules adopted pursuant thereto, and shall be submitted to the department within the time period required by rule for an employer to submit the employer’s contribution and payroll report.
   2.  For economic development incentives applied for on or after July 1, 2019, in addition to any other requirement for an employer to receive an economic development incentive from a government entity, an employer shall register with and participate in the e-verify program. Before receiving the economic development incentive, the employer shall provide proof to the government entity that the employer is registered with and is participating in the e-verify program. If the government entity determines that the employer is not complying with this subsection, the government entity shall notify the employer by certified mail of the government entity’s determination of noncompliance and the employer’s right to appeal the determination. On a final determination of noncompliance, the employer shall repay all moneys received as an economic development incentive to the government entity within thirty days of the final determination.
   3.  If an employer who employs four or more employees in the state verifies the employment eligibility of an employee through the e-verify program, and the program indicates that the employee is not eligible for employment, the employer shall notify the employee and the department in writing. The employee shall have the right to submit evidence to the employer and department that the employee is eligible for employment. If the department determines after examination of such evidence that the employee was inaccurately indicated as ineligible for employment by the e-verify program, the department shall provide the employee with back pay in an amount equal to the wages the employee would have earned from employment by the employer from the date of the inaccurate indication through the date of the department’s determination. The employee may request a contested case hearing pursuant to chapter 17A following the department’s determination. There is appropriated to the department from funds in the general fund not otherwise appropriated an amount necessary to provide any back pay to employees required pursuant to this subsection.
   Sec. 4.  NEW SECTION.  95.4  Compliance with federal and state law.
   This chapter shall not be construed to require an employer to take any action that the employer believes in good faith would violate federal or state law.
   Sec. 5.  NEW SECTION.  95.5  Rules.
   The department shall adopt rules pursuant to chapter 17A to administer this chapter.
   Sec. 6.  NEW SECTION.  95.6  Use of federal funds by department prohibited.
   The department shall not utilize federal funds, or personnel or any other department resources for which federal funding is allocated, to carry out the department’s duties under this chapter.
   Sec. 7.  IMPLEMENTATION OF ACT.  Section 25B.2, subsection 3, shall not apply to this Act.>
   2.  Title page, line 1, after <aliens> by inserting <, making an appropriation,>

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ROBERT M. HOGG