HF 368 (LSB 1596YH (7) 85)

HOUSE FILE 368

BY  GARRETT, WORTHAN, ROGERS, RAYHONS, WATTS, FRY, BRANDENBURG, HEARTSILL, GASSMAN, L. MILLER, HANUSA, DOLECHECK, SALMON, BYRNES, HESS, DRAKE, PETTENGILL, FISHER, ALONS, DEYOE, KOESTER, SHEETS, WINDSCHITL, HUSEMAN, SCHULTZ, SHAW, MAXWELL, R. TAYLOR, and HANSON

A BILL FOR

An Act relating to the employment of unauthorized aliens and providing penalties and remedies.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  93.1  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.  “Economic development incentive” means a grant, loan, or performance-based incentive awarded by a public employer of this state. “Economic development incentive” does not include a tax credit or tax incentive program.
   3.  “Employ” means hiring or continuing to employ an individual to perform services.
   4.  “Employee” means an individual who provides services or labor for an employer or public employer in this state for wages or other remuneration. “Employee” does not include an independent contractor.
   5.  “Employer” means a person, as defined in chapter 4, that does business with or receives an economic development incentive from a public employer, and that employs one or more employees in this state.
   6.  “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 or any successor program.
   7.
  a.  “Independent contractor” means a person that carries on an independent business, that contracts to do a piece of work according to the person’s own means and methods and that is subject to control only as to results. Whether a person is an independent contractor is determined on a case-by-case basis through various factors, including whether the person does any of the following:
   (1)  Supplies tools or materials.
   (2)  Makes services available to the general public.
   (3)  Works or may work for a number of clients at the same time.

   (4)  Has an opportunity for profit or loss as a result of labor or service provided.
   (5)  Invests in facilities for work.
   (6)  Directs the order or sequence in which the work is completed.
   (7)  Determines the hours when the work is completed.
   b.  Independent contractor status includes an individual who performs services and is not an employee pursuant to section 3508 of the Internal Revenue Code.
   8.  “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.
   9.  “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.
   10.  “Political subdivision” means a city, county, township, school district, area education agency, community college, or institution governed by the state board of regents.
   11.  “Professional license” means a license, certification, or registration required by law to engage in a profession or occupation in this state.
   12.  “Public employer” means this state or a political subdivision of 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).
    Sec. 2.  NEW SECTION.  93.2  Knowingly employing unauthorized aliens.
   1.  Knowingly employing unauthorized aliens prohibited.  An employer or public employer shall not knowingly employ an unauthorized alien. If an employer or public employer uses a contract, subcontract, or other independent contractor agreement to obtain the labor of an alien in this state, and the employer or public employer knowingly contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer or public employer violates this subsection.
   2.  Court action required.  An action for a violation of subsection 1 shall be brought against an employer by the county attorney in the district court of the county where the unauthorized alien employee is or was employed by the employer. The district court shall expedite the action, including assigning a hearing at the earliest practicable date.
   3.  Court order —— first violation.  On a finding of a first violation as described in subsection 5, the court shall require by order all of the following:
   a.  The employer shall terminate the employment of all unauthorized aliens.
   b.
  (1)  The employer shall be subject to a three-year probationary period for the business location where the unauthorized alien performed work.
   (2)  During the probationary period, the employer shall file quarterly reports in the form prescribed in section 252G.3 with the county attorney for each new employee who is hired by the employer at the business location where the unauthorized alien performed work.
   c.  The employer shall be required to file a signed sworn affidavit with the county attorney within three business days after the order is issued. The affidavit shall state that the employer has terminated the employment of all of the employer’s unauthorized alien employees in this state and that the employer will not knowingly employ an unauthorized alien in this state.
   (1)  The court shall order the appropriate agencies to suspend all licenses that are held by the employer if the employer fails to file a signed sworn affidavit with the county attorney within three business days after the order is issued. All licenses that are suspended shall remain suspended until the employer files a signed sworn affidavit with the county attorney. Upon filing of the affidavit, the suspended licenses shall be reinstated immediately by the appropriate agencies.
   (2)  Licenses that are subject to suspension under this paragraph “c” are all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer’s business in general, the licenses that are subject to suspension under this paragraph “c” are all licenses that are held by the employer at the employer’s primary place of business. On receipt of the court’s order, the appropriate agencies shall suspend the licenses according to the court’s order. The court shall send a copy of the court’s order to the secretary of state and the secretary of state shall maintain the copy pursuant to subsection 6.
   (3)  The court may order the appropriate agencies to suspend all licenses described in this paragraph “c” that are held by the employer for not more than ten business days. The court shall base its decision to suspend licenses under this subparagraph on any evidence or information submitted to the court during the action for a violation of subsection 1 and shall consider the following factors, if relevant:
   (a)  The number of unauthorized aliens employed by the employer.
   (b)  Any prior misconduct by the employer.
   (c)  The degree of harm resulting from the violation.
   (d)  Whether the employer made good faith efforts to comply with any applicable requirements.
   (e)  The duration of the violation.
   (f)  The role of the directors, officers, or principals of the employer in the violation.
   (g)  Any other factors the court deems appropriate.

   4.  Court order —— second violation.  For a second violation, as described in subsection 5, the court shall order the appropriate agencies to revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer’s business in general, the court shall order the appropriate agencies to revoke all licenses that are held by the employer at the employer’s primary place of business. On receipt of the order, the appropriate agencies shall immediately revoke the licenses. An agency shall not reissue a license revoked in this manner.
   5.  Violations defined.
   a.  A violation shall be considered a first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under subsection 3, paragraph “b”, for that employer’s business location.
   b.  A violation shall be considered a second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under subsection 3, paragraph “b”, for that employer’s business location.
   6.  Secretary of state database.  The secretary of state shall maintain copies of court orders that are received pursuant to subsection 3, paragraph “c”, and shall maintain a database of the employers and business locations found to have committed a first violation of subsection 1 and make the court orders available on the secretary of state’s internet site.
   7.  Federal determination governs.  In determining whether an employee is an unauthorized alien, the court shall consider only the federal government’s determination pursuant to 8 U.S.C. § 1373(c). The federal government’s determination creates a rebuttable presumption of the employee’s lawful status. The court may take judicial notice of the federal government’s determination and may request the federal government to provide automated or testimonial verification pursuant to 8 U.S.C. § 1373(c).
   8.  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.
   9.  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.
   (3)  The employer was not predisposed to commit the violation before 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. It is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identity. The conduct of law enforcement officers and their agents may be considered in determining if an employer has proven entrapment.
    Sec. 3.  NEW SECTION.  93.3  E-verify program —— employer participation.
   1.  An employer or public employer, after hiring an employee, shall verify the employment eligibility of the employee through the e-verify program and shall keep a record of the verification for the duration of the employee’s employment or at least three years, whichever is longer.
   2.  In addition to any other requirement for an employer to receive an economic development incentive from a public employer, the employer shall register with and participate in the e-verify program. Before receiving the economic development incentive, the employer shall provide proof to the public employer that the employer is registered with and is participating in the e-verify program. If the public employer determines that the employer is not complying with this subsection, the public employer shall notify the employer by certified mail of the public employer’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 public employer within thirty days of the final determination.
   3.  Every three months, the secretary of state shall request from the United States department of homeland security a list of employers and public employers from this state that are registered with the e-verify program. On receipt of the list of employers and public employers, the secretary of state shall make the list available on the secretary of state’s internet site.
    Sec. 4.  NEW SECTION.  93.4  Compliance with federal and state law.
   This chapter shall not be construed to require an employer or public employer to take any action that the employer or public employer believes in good faith would violate federal or state law.
    Sec. 5.  IMPLEMENTATION OF ACT.  Section 25B.2, subsection 3, shall not apply to this Act.
EXPLANATION
   This bill prohibits employers and public employers from knowingly employing unauthorized aliens. The bill defines an “employer” as a person, as defined in Code chapter 4, that does business with or receives an economic development incentive from a public employer, and that employs one or more employees in the state. The bill defines “public employer” as this state or a political subdivision of this state.
   The bill requires the county attorney to bring an action in district court against an employer for a violation in the county where the unauthorized alien employee is or was employed by the employer. The bill provides that such an action must be expedited by the court.
   The bill provides that for a first violation, the court must order the employer to terminate the employment of all of its unauthorized alien employees and to submit a signed sworn affidavit to that effect or face suspension of business licenses by appropriate agencies. The court must also order a three-year probationary period for the employer. The court may also order the suspension of the employer’s business licenses by appropriate agencies for up to 10 business days, after considering certain factors. The bill provides that for a second violation, defined as a violation occurring during a probationary period for a previous violation, the court must order the revocation of the employer’s business licenses. Licenses revoked in this manner cannot be reissued. The bill directs the secretary of state to maintain an online database of first-time offenders.
   The bill provides that the district court can only consider a determination by the federal government in determining the immigration status of an alleged unauthorized alien employee. The bill provides that an employer who establishes that the employer complied in good faith with 8 U.S.C. § 1324a(b) establishes a conclusive affirmative defense that the employer did not knowingly employ an unauthorized alien. The bill provides that 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. The bill provides an employer with an affirmative defense of entrapment if certain elements are met.
   The bill requires an employer or public employer hiring a new employee to verify the employee’s employment eligibility through the federal e-verify program. The bill requires the employer or public employer to keep records of the verification for the duration of the employee’s employment or three years, whichever is longer. 
   The bill also requires an employer receiving an economic development incentive from a public employer in the state to register with the federal e-verify program. The bill provides that an employer who does not comply with the requirement must repay all moneys received as an economic development incentive. The bill provides an employer the right to appeal a determination of noncompliance, and does not require repayment until a final determination of noncompliance is made. 
   The bill directs the secretary of state to request from the United States department of homeland security a list of employers and public employers registered with the e-verify program every three months. The bill directs the secretary of state to make the list available on the secretary of state’s internet site.
   The bill provides that the bill shall not be construed to require an employer or public employer to take any action that the employer believes in good faith would violate federal or state law.
   The bill may include a state mandate as defined in Code section 25B.3. The bill makes inapplicable Code section 25B.2, subsection 3, which would relieve a political subdivision from complying with a state mandate if funding for the cost of the state mandate is not provided or specified. Therefore, political subdivisions are required to comply with any state mandate included in the bill.