Senate
File
516
-
Introduced
SENATE
FILE
516
BY
COMMITTEE
ON
JUDICIARY
(SUCCESSOR
TO
SF
243)
A
BILL
FOR
An
Act
relating
to
the
employment
of
unauthorized
aliens
and
1
providing
penalties.
2
BE
IT
ENACTED
BY
THE
GENERAL
ASSEMBLY
OF
THE
STATE
OF
IOWA:
3
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516
Section
1.
NEW
SECTION
.
95.1
Definitions.
1
As
used
in
this
chapter,
unless
the
context
otherwise
2
requires:
3
1.
“Agency”
means
an
agency,
department,
board,
or
4
commission
of
this
state
or
a
political
subdivision
that
issues
5
a
license
for
purposes
of
operating
a
business
in
this
state.
6
1A.
“Department”
means
the
department
of
workforce
7
development.
8
2.
“Economic
development
incentive”
means
a
grant,
loan,
or
9
performance-based
incentive
awarded
by
a
government
entity
of
10
this
state.
“Economic
development
incentive”
does
not
include
a
11
tax
credit
or
tax
incentive
program.
12
3.
“Employ”
means
hiring
or
continuing
to
employ
an
13
individual
to
perform
services.
14
4.
“Employee”
means
an
individual
who
provides
services
15
or
labor
for
an
employer
in
this
state
for
wages
or
other
16
remuneration.
“Employee”
does
not
include
an
independent
17
contractor.
18
5.
“Employer”
means
a
person,
as
defined
in
section
4.1,
19
that
transacts
business
in
this
state
and
that
has
a
license
20
issued
by
an
agency
in
this
state.
“Employer”
includes
21
this
state,
a
political
subdivision
of
this
state,
and
a
22
self-employed
individual.
In
the
case
of
an
independent
23
contractor,
“employer”
means
the
independent
contractor
and
24
does
not
mean
the
person
or
organization
that
uses
the
contract
25
labor.
26
6.
“E-verify
program”
means
the
employment
verification
27
program
as
jointly
administered
by
the
United
States
department
28
of
homeland
security
and
the
United
States
social
security
29
administration
or
any
successor
program.
30
7.
“Government
entity”
means
this
state
or
a
political
31
subdivision
of
this
state
that
receives
and
uses
tax
revenues.
32
8.
a.
“Independent
contractor”
means
a
person
that
carries
33
on
an
independent
business,
that
contracts
to
do
a
piece
of
34
work
according
to
the
person’s
own
means
and
methods,
and
that
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is
subject
to
control
only
as
to
results.
Whether
a
person
is
1
an
independent
contractor
is
determined
on
a
case-by-case
basis
2
through
various
factors,
including
whether
the
person
does
any
3
of
the
following:
4
(1)
Supplies
tools
or
materials.
5
(2)
Makes
services
available
to
the
general
public.
6
(3)
Works
or
may
work
for
a
number
of
clients
at
the
same
7
time.
8
(4)
Has
an
opportunity
for
profit
or
loss
as
a
result
of
9
labor
or
service
provided.
10
(5)
Invests
in
facilities
for
work.
11
(6)
Directs
the
order
or
sequence
in
which
the
work
is
12
completed.
13
(7)
Determines
the
hours
when
the
work
is
completed.
14
b.
Independent
contractor
status
includes
an
individual
who
15
performs
services
and
is
not
an
employee
pursuant
to
section
16
3508
of
the
Internal
Revenue
Code.
17
9.
“Knowingly
employ
an
unauthorized
alien”
means
the
18
actions
described
in
8
U.S.C.
§1324a,
and
shall
be
interpreted
19
consistently
with
8
U.S.C.
§1324a
and
any
applicable
federal
20
regulations.
21
10.
“License”
means
a
permit,
certificate,
approval,
22
registration,
charter,
or
similar
form
of
authorization,
other
23
than
a
professional
license,
that
is
required
by
law
and
that
24
is
issued
by
an
agency,
allowing
the
licensee
to
do
business
25
in
this
state.
26
11.
“Unauthorized
alien”
means
an
alien
who
does
not
have
27
the
legal
right
or
authorization
under
federal
law
to
work
in
28
the
United
States
as
described
in
8
U.S.C.
§1324a(h)(3).
29
Sec.
2.
NEW
SECTION
.
95.2
Knowingly
employing
unauthorized
30
aliens.
31
1.
Knowingly
employing
unauthorized
aliens
prohibited.
An
32
employer
shall
not
knowingly
employ
an
unauthorized
alien.
If
33
an
employer
uses
a
contract,
subcontract,
or
other
independent
34
contractor
agreement
to
obtain
the
labor
of
an
alien
in
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this
state,
and
the
employer
knowingly
contracts
with
an
1
unauthorized
alien
or
with
a
person
who
employs
or
contracts
2
with
an
unauthorized
alien
to
perform
the
labor,
the
employer
3
violates
this
subsection.
4
2.
Complaints
——
court
action
required.
A
county
attorney,
5
local
law
enforcement
official,
or
member
of
the
public
may
6
file
a
complaint
of
a
violation
of
subsection
1
with
the
7
department.
If
the
department
determines,
based
on
evidence
8
included
with
the
complaint
or
on
evidence
gathered
by
the
9
department,
that
an
employer
has
violated
subsection
1,
the
10
department
shall
bring
an
action
against
the
employer
in
the
11
district
court
of
the
county
where
the
unauthorized
alien
12
employee
is
or
was
employed
by
the
employer.
The
district
13
court
shall
expedite
the
action,
including
scheduling
a
hearing
14
at
the
earliest
practicable
date.
15
3.
Court
order
——
first
violation.
On
a
finding
of
a
first
16
violation
as
described
in
subsection
5,
the
court
shall
require
17
by
order
all
of
the
following:
18
a.
The
employer
shall
terminate
the
employment
of
all
19
unauthorized
aliens.
20
b.
(1)
The
employer
shall
be
subject
to
a
three-year
21
probationary
period
for
the
business
location
where
the
22
unauthorized
alien
performed
work.
23
(2)
During
the
probationary
period,
the
employer
shall
file
24
quarterly
reports
on
the
form
prescribed
in
section
252G.3
25
with
the
department
for
each
new
employee
who
is
hired
by
the
26
employer
at
the
business
location
where
the
unauthorized
alien
27
performed
work.
28
c.
The
employer
shall
be
required
to
file
a
signed
sworn
29
affidavit
with
the
department
within
three
business
days
after
30
the
order
is
issued.
The
affidavit
shall
state
that
the
31
employer
has
terminated
the
employment
of
all
unauthorized
32
aliens
in
this
state
and
that
the
employer
will
not
knowingly
33
employ
an
unauthorized
alien
in
this
state.
34
(1)
The
court
shall
order
the
appropriate
agencies
to
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suspend
all
licenses
that
are
held
by
the
employer
if
the
1
employer
fails
to
file
a
signed
sworn
affidavit
with
the
2
department
within
three
business
days
after
the
order
is
3
issued.
All
licenses
that
are
suspended
shall
remain
suspended
4
until
the
employer
files
a
signed
sworn
affidavit
with
the
5
department.
Upon
filing
of
the
affidavit,
the
suspended
6
licenses
shall
be
reinstated
immediately
by
the
appropriate
7
agencies.
8
(2)
Licenses
that
are
subject
to
suspension
under
this
9
paragraph
“c”
are
all
licenses
that
are
held
by
the
employer
10
specific
to
the
business
location
where
the
unauthorized
alien
11
performed
work.
If
the
employer
does
not
hold
a
license
12
specific
to
the
business
location
where
the
unauthorized
alien
13
performed
work,
but
a
license
is
necessary
to
operate
the
14
employer’s
business
in
general,
the
licenses
that
are
subject
15
to
suspension
under
this
paragraph
“c”
are
all
licenses
that
16
are
held
by
the
employer
at
the
employer’s
primary
place
of
17
business.
On
receipt
of
the
court’s
order,
the
appropriate
18
agencies
shall
suspend
the
licenses
according
to
the
court’s
19
order.
The
court
shall
send
a
copy
of
the
court’s
order
to
the
20
secretary
of
state
and
the
secretary
of
state
shall
maintain
21
the
copy
pursuant
to
subsection
6.
22
(3)
The
court
may
order
the
appropriate
agencies
to
suspend
23
all
licenses
described
in
this
paragraph
“c”
that
are
held
by
24
the
employer
for
not
more
than
ten
business
days.
The
court
25
shall
base
its
decision
to
suspend
under
this
subparagraph
26
on
any
evidence
or
information
submitted
to
it
during
the
27
action
for
a
violation
of
subsection
1
and
shall
consider
the
28
following
factors,
if
relevant:
29
(a)
The
number
of
unauthorized
aliens
employed
by
the
30
employer.
31
(b)
Any
prior
misconduct
by
the
employer.
32
(c)
The
degree
of
harm
resulting
from
the
violation.
33
(d)
Whether
the
employer
made
good
faith
efforts
to
comply
34
with
any
applicable
requirements.
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(e)
The
duration
of
the
violation.
1
(f)
The
role
of
the
directors,
officers,
or
principals
of
2
the
employer
in
the
violation.
3
(g)
Any
other
factors
the
court
deems
appropriate.
4
4.
Court
order
——
second
violation.
For
a
second
violation,
5
as
described
in
subsection
5,
the
court
shall
order
the
6
appropriate
agencies
to
permanently
revoke
all
licenses
that
7
are
held
by
the
employer
specific
to
the
business
location
8
where
the
unauthorized
alien
performed
work.
If
the
employer
9
does
not
hold
a
license
specific
to
the
business
location
10
where
the
unauthorized
alien
performed
work,
but
a
license
11
is
necessary
to
operate
the
employer’s
business
in
general,
12
the
court
shall
order
the
appropriate
agencies
to
permanently
13
revoke
all
licenses
that
are
held
by
the
employer
at
the
14
employer’s
primary
place
of
business.
On
receipt
of
the
order,
15
the
appropriate
agencies
shall
immediately
revoke
the
licenses.
16
5.
Violations
defined.
17
a.
A
violation
shall
be
considered
a
first
violation
by
18
an
employer
at
a
business
location
if
the
violation
did
not
19
occur
during
a
probationary
period
ordered
by
the
court
under
20
subsection
3,
paragraph
“b”
,
for
that
employer’s
business
21
location.
22
b.
A
violation
shall
be
considered
a
second
violation
by
23
an
employer
at
a
business
location
if
the
violation
occurred
24
during
a
probationary
period
ordered
by
the
court
under
25
subsection
3,
paragraph
“b”
,
for
that
employer’s
business
26
location.
27
6.
Secretary
of
state
database.
The
secretary
of
state
28
shall
maintain
copies
of
court
orders
that
are
received
29
pursuant
to
subsection
3,
paragraph
“c”
,
and
shall
maintain
a
30
database
of
the
employers
and
business
locations
found
to
have
31
committed
a
first
violation
of
subsection
1
and
make
the
court
32
orders
available
on
the
secretary
of
state’s
internet
site.
33
7.
Federal
determination
creates
rebuttable
presumption.
In
34
determining
whether
an
employee
is
an
unauthorized
alien,
the
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court
shall
consider
the
federal
government’s
determination
1
of
the
immigration
status
of
the
employee
pursuant
to
8
2
U.S.C.
§1373(c).
The
court
may
take
judicial
notice
of
the
3
federal
government’s
determination.
The
federal
government’s
4
determination
that
the
employee
is
an
unauthorized
alien
5
creates
a
rebuttable
presumption
of
the
employee’s
unauthorized
6
status.
The
employer
may
present
evidence
that
the
employee
7
is
not
an
unauthorized
alien.
8
8.
Good-faith
compliance.
For
the
purposes
of
this
section,
9
an
employer
that
establishes
that
it
has
complied
in
good
10
faith
with
the
requirements
of
8
U.S.C.
§1324a(b)
establishes
11
a
conclusive
affirmative
defense
that
the
employer
did
not
12
knowingly
employ
an
unauthorized
alien.
An
employer
is
13
considered
to
have
complied
with
the
requirements
of
8
U.S.C.
14
§1324a(b),
notwithstanding
an
isolated,
sporadic,
or
accidental
15
technical
or
procedural
failure
to
meet
the
requirements,
if
16
there
is
a
good-faith
attempt
to
comply
with
the
requirements.
17
For
purposes
of
this
subsection,
“good-faith
attempt
to
comply”
18
means
an
employer
to
which
all
of
the
following
apply
with
19
respect
to
an
employee
hired
or
rehired
by
the
employer:
20
a.
The
employer
made
a
bona
fide
attempt
to
meet
the
21
requirements
for
completion
of
the
form
I-9
for
the
employee
22
found
in
8
C.F.R.
§274a.2(a)(3),
as
amended
through
January
1,
23
2019.
24
b.
The
employer
was
a
participating
employer
in
the
e-verify
25
program
at
the
time
the
employee
was
hired
or
rehired.
26
c.
The
employer
can
demonstrate
that
the
employer
attempted
27
to
verify
the
employment
eligibility
of
the
employee
through
28
the
e-verify
program.
29
9.
Entrapment
as
affirmative
defense.
30
a.
It
is
an
affirmative
defense
to
a
violation
of
subsection
31
1
that
the
employer
was
entrapped.
To
claim
entrapment,
the
32
employer
must
admit
by
the
employer’s
testimony
or
other
33
evidence
the
substantial
elements
of
the
violation.
An
34
employer
who
asserts
an
entrapment
defense
has
the
burden
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of
proving
all
of
the
following
by
a
preponderance
of
the
1
evidence:
2
(1)
The
idea
of
committing
the
violation
started
with
law
3
enforcement
officers
or
their
agents
rather
than
with
the
4
employer.
5
(2)
The
law
enforcement
officers
or
their
agents
urged
and
6
induced
the
employer
to
commit
the
violation.
7
b.
An
employer
does
not
establish
entrapment
if
the
employer
8
was
predisposed
to
violate
subsection
1
and
the
law
enforcement
9
officers
or
their
agents
merely
provided
the
employer
with
10
an
opportunity
to
commit
the
violation.
The
conduct
of
law
11
enforcement
officers
and
their
agents
may
be
considered
in
12
determining
if
an
employer
has
proven
entrapment.
13
Sec.
3.
NEW
SECTION
.
95.3
E-verify
program
——
employer
14
participation
——
economic
development
incentives
from
government
15
entities.
16
1.
An
employer,
after
hiring
or
rehiring
an
employee,
shall
17
verify
the
employment
eligibility
of
the
employee
through
18
the
e-verify
program,
shall
certify
to
the
department
that
19
the
employer
has
done
so,
and
shall
keep
a
record
of
the
20
verification
for
the
duration
of
the
employee’s
employment
or
21
at
least
three
years,
whichever
is
longer.
The
certification
22
shall
be
considered
a
record
under
section
96.11,
subsection
23
6,
and
rules
adopted
pursuant
thereto,
and
shall
be
submitted
24
to
the
department
within
the
time
period
required
by
rule
for
25
an
employer
to
submit
the
employer’s
contribution
and
payroll
26
report.
27
2.
In
addition
to
any
other
requirement
for
an
employer
to
28
receive
an
economic
development
incentive
from
a
government
29
entity,
the
employer
shall
register
with
and
participate
30
in
the
e-verify
program.
Before
receiving
the
economic
31
development
incentive,
the
employer
shall
provide
proof
to
the
32
government
entity
that
the
employer
is
registered
with
and
33
is
participating
in
the
e-verify
program.
If
the
government
34
entity
determines
that
the
employer
is
not
complying
with
this
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subsection,
the
government
entity
shall
notify
the
employer
1
by
certified
mail
of
the
government
entity’s
determination
2
of
noncompliance
and
the
employer’s
right
to
appeal
the
3
determination.
On
a
final
determination
of
noncompliance,
4
the
employer
shall
repay
all
moneys
received
as
an
economic
5
development
incentive
to
the
government
entity
within
thirty
6
days
of
the
final
determination.
7
3.
Every
three
months,
the
secretary
of
state
shall
request
8
from
the
United
States
department
of
homeland
security
a
9
list
of
employers
from
this
state
that
are
registered
with
10
the
e-verify
program.
On
receipt
of
the
list
of
employers,
11
the
secretary
of
state
shall
make
the
list
available
on
the
12
secretary
of
state’s
internet
site.
13
Sec.
4.
NEW
SECTION
.
95.4
Compliance
with
federal
and
state
14
law.
15
This
chapter
shall
not
be
construed
to
require
an
employer
to
16
take
any
action
that
the
employer
believes
in
good
faith
would
17
violate
federal
or
state
law.
18
Sec.
5.
NEW
SECTION
.
95.5
Rules.
19
The
department
shall
adopt
rules
pursuant
to
chapter
17A
to
20
carry
out
the
department’s
duties
under
this
chapter,
including
21
but
not
limited
to
processes
for
the
filing
of
complaints,
22
quarterly
reports,
and
affidavits
pursuant
to
section
95.2
and
23
certifications
pursuant
to
section
95.3
with
the
department.
24
Sec.
6.
IMPLEMENTATION
OF
ACT.
Section
25B.2,
subsection
25
3,
shall
not
apply
to
this
Act.
26
EXPLANATION
27
The
inclusion
of
this
explanation
does
not
constitute
agreement
with
28
the
explanation’s
substance
by
the
members
of
the
general
assembly.
29
This
bill
prohibits
employers
from
knowingly
employing
30
unauthorized
aliens.
31
The
bill
defines
“employer”
as
a
person
that
transacts
32
business
in
this
state
and
that
has
a
license
issued
by
an
33
agency
in
this
state.
“Employer”
includes
this
state,
a
34
political
subdivision
of
this
state,
and
a
self-employed
35
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individual.
In
the
case
of
an
independent
contractor,
1
“employer”
means
the
independent
contractor
and
does
not
mean
2
the
person
or
organization
that
uses
the
contract
labor.
3
The
bill
authorizes
a
county
attorney,
local
law
enforcement
4
official,
or
member
of
the
public
to
file
a
complaint
of
a
5
violation
with
the
department
of
workforce
development.
If
6
the
department
determines,
based
on
evidence
included
with
7
the
complaint
or
on
evidence
gathered
by
the
department,
that
8
an
employer
has
committed
a
violation,
the
bill
requires
the
9
department
to
bring
an
action
in
district
court
against
an
10
employer
for
a
violation
in
the
county
where
the
unauthorized
11
alien
employee
is
or
was
employed
by
the
employer.
The
bill
12
provides
that
such
an
action
must
be
expedited
by
the
court.
13
The
bill
provides
that
for
a
first
violation,
the
court
14
must
order
the
employer
to
terminate
the
employment
of
all
15
unauthorized
aliens
and
to
submit
a
signed
sworn
affidavit
16
to
that
effect
or
face
suspension
of
business
licenses
by
17
appropriate
agencies.
The
court
must
also
order
a
three-year
18
probationary
period
for
the
employer.
The
court
may
also
19
order
the
suspension
of
the
employer’s
business
licenses
20
by
appropriate
agencies
for
up
to
10
business
days,
after
21
considering
certain
specified
factors.
The
bill
provides
that
22
for
a
second
violation,
defined
as
a
violation
occurring
during
23
a
probationary
period
for
a
previous
violation,
the
court
must
24
order
the
permanent
revocation
of
the
employer’s
business
25
licenses.
The
bill
directs
the
secretary
of
state
to
maintain
26
an
online
database
of
first-time
offenders.
27
In
determining
the
immigration
status
of
an
alleged
28
unauthorized
alien
employed
by
an
employer,
the
bill
requires
29
the
district
court
to
consider
the
federal
government’s
30
determination
of
the
immigration
status
of
the
employee.
The
31
federal
government’s
determination
that
the
employee
is
an
32
unauthorized
alien
creates
a
rebuttable
presumption
of
the
33
employee’s
unauthorized
status.
The
employer
may
present
34
evidence
that
the
employee
is
not
an
unauthorized
alien.
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The
bill
provides
that
an
employer
who
establishes
that
the
1
employer
complied
in
good
faith
with
8
U.S.C.
§1324a(b),
2
relating
to
verification
of
authorization
for
employment,
3
establishes
a
conclusive
affirmative
defense
that
the
employer
4
did
not
knowingly
employ
an
unauthorized
alien.
The
bill
5
provides
that
an
employer
is
considered
to
have
complied
with
6
the
requirements
of
8
U.S.C.
§1324a(b),
notwithstanding
an
7
isolated,
sporadic,
or
accidental
technical
or
procedural
8
failure
to
meet
the
requirements,
if
there
is
a
good-faith
9
attempt
to
comply
with
the
requirements
as
defined
in
the
bill.
10
The
bill
provides
an
employer
with
an
affirmative
defense
of
11
entrapment
if
certain
elements
are
met.
12
The
bill
requires
an
employer
hiring
or
rehiring
an
employee
13
to
verify
the
employee’s
employment
eligibility
through
the
14
federal
e-verify
program
and
certify
to
the
department
of
15
workforce
development
that
the
employer
has
done
so.
The
bill
16
requires
the
employer
to
keep
records
of
the
verification
17
for
the
duration
of
the
employee’s
employment
or
three
18
years,
whichever
is
longer,
and
establishes
a
time
period
19
for
submission
of
certifications
to
the
department.
The
20
bill
requires
an
employer
receiving
an
economic
development
21
incentive
from
a
state
government
entity
to
register
with
the
22
federal
e-verify
program.
The
bill
provides
that
an
employer
23
who
does
not
comply
with
the
requirement
must
repay
all
moneys
24
received
for
the
economic
development
incentive.
The
bill
25
provides
an
employer
the
right
to
appeal
a
determination
of
26
noncompliance
and
does
not
require
repayment
until
a
final
27
determination
of
noncompliance
is
made.
The
bill
directs
the
28
secretary
of
state
to
request
from
the
United
States
department
29
of
homeland
security
a
list
of
employers
registered
with
the
30
e-verify
program
every
three
months.
The
bill
directs
the
31
secretary
of
state
to
make
the
list
available
on
the
secretary
32
of
state’s
internet
site.
33
The
bill
provides
that
the
bill
shall
not
be
construed
34
to
require
an
employer
to
take
any
action
that
the
employer
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believes
in
good
faith
would
violate
federal
or
state
law.
1
The
bill
requires
the
department
of
workforce
development
2
to
adopt
rules
to
carry
out
the
department’s
duties
under
the
3
bill,
including
but
not
limited
to
rules
on
certain
specified
4
subjects.
5
The
bill
may
include
a
state
mandate
as
defined
in
Code
6
section
25B.3.
The
bill
makes
inapplicable
Code
section
25B.2,
7
subsection
3,
which
would
relieve
a
political
subdivision
from
8
complying
with
a
state
mandate
if
funding
for
the
cost
of
9
the
state
mandate
is
not
provided
or
specified.
Therefore,
10
political
subdivisions
are
required
to
comply
with
any
state
11
mandate
included
in
the
bill.
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