Senate File 2109 - Introduced
SENATE FILE
BY HATCH and BOLKCOM
Passed Senate, Date Passed House, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act concerning the employment of unauthorized aliens and human
2 trafficking and providing penalties and other sanctions and an
3 appropriation.
4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
5 TLSB 5880XS 81
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PAG LIN
1 1 Section 1. NEW SECTION. 13.6A SPECIAL ASSISTANT == HUMAN
1 2 TRAFFICKING AND RELATED OFFENSES == EMPLOYMENT OF UNAUTHORIZED
1 3 ALIENS.
1 4 The attorney general shall appoint a special assistant
1 5 attorney general for claims who shall, under the direction of
1 6 the attorney general, investigate and prosecute all claims
1 7 relating to the crime of human trafficking and related
1 8 offenses pursuant to sections 710A.2, 710A.3, and 710A.4 and
1 9 the employment of unauthorized aliens pursuant to section
1 10 91F.2.
1 11 Sec. 2. NEW SECTION. 73A.22 STATE ASSISTANCE
1 12 RESTRICTIONS == PERSONS EMPLOYING UNAUTHORIZED ALIENS.
1 13 1. a. A state department, institution, or agency, or any
1 14 board member, commissioner, director, manager, or other person
1 15 connected with any such department, institution, or agency,
1 16 shall not award a contract or provide developmental assistance
1 17 to an employer as defined in section 91F.1 in which the
1 18 employer or corporate officer of the employer has been found
1 19 in violation of section 91F.2 within the past five years.
1 20 b. For purposes of this section, "developmental
1 21 assistance" means any form of public assistance, including tax
1 22 expenditures, made for the purpose of stimulating the economic
1 23 development of a corporation, industry, geographic
1 24 jurisdiction, or any other sector of the state's economy,
1 25 including but not limited to industrial development bonds,
1 26 training grants, loans, loan guarantees, enterprise zones,
1 27 empowerment zones, tax increment financing, fee waivers, land
1 28 price subsidies, infrastructure constructed or improved for
1 29 the benefit of a single business or defined group of
1 30 businesses at the time it is built or improved, matching
1 31 funds, tax abatements, tax credits and tax discounts of every
1 32 kind, including corporate, franchise, personal income, sales
1 33 and use, raw materials, real property, job creation,
1 34 individual investment, excise, utility, inventory, accelerated
1 35 depreciation, and research and development tax credits and
2 1 discounts.
2 2 2. Any contract or developmental assistance awarded shall
2 3 provide that if, during the effective period of the contract
2 4 or developmental assistance, the vendor, contractor,
2 5 subcontractor, or developmental assistance recipient violates
2 6 the provisions of section 91F.2, the contract or developmental
2 7 assistance shall be terminated.
2 8 3. A state department, institution, or agency may enforce
2 9 its rights under this section by instituting a civil action in
2 10 district court in this state. In addition, a state
2 11 department, institution, or agency shall not award a contract
2 12 or provide developmental assistance to any person that
2 13 violates this section for a period of five years after the
2 14 date of the violation.
2 15 Sec. 3. NEW SECTION. 91F.1 DEFINITIONS.
2 16 As used in this chapter:
2 17 1. "Commissioner" means the labor commissioner.
2 18 2. "Employee" means a natural person who is employed in
2 19 this state for wages paid on an hourly basis by an employer.
2 20 3. "Employer" means a person, as defined in section 4.1,
2 21 who in this state employs for wages, paid on an hourly basis,
2 22 one or more natural persons. An employer does not include a
2 23 client, patient, customer, or other person who obtains
2 24 professional services from a licensed person who provides the
2 25 services on a fee service basis or as an independent
2 26 contractor, or the state, or an agency or governmental
2 27 subdivision of the state.
2 28 4. "Unauthorized alien" means a person who is not a
2 29 citizen or legal resident and who has not been lawfully
2 30 admitted to the United States for permanent residence or who
2 31 is not authorized to work in the United States.
2 32 Sec. 4. NEW SECTION. 91F.2 UNAUTHORIZED ALIENS ==
2 33 EMPLOYER PROHIBITION.
2 34 An employer shall not knowingly employ as an employee an
2 35 unauthorized alien. For purposes of this section, "knowingly
3 1 employ as an employee an unauthorized alien" includes cases in
3 2 which an employer actually knows a person is an unauthorized
3 3 alien and cases in which any person exercising reasonable care
3 4 should know from facts and circumstances that a person is an
3 5 unauthorized alien.
3 6 Sec. 5. NEW SECTION. 91F.3 PENALTIES.
3 7 1. An employer who violates section 91F.2 is subject to a
3 8 civil penalty of up to one thousand dollars.
3 9 2. A corporate officer of an employer who, through
3 10 repeated violation of section 91F.2, demonstrates a pattern of
3 11 employing unauthorized aliens commits a serious misdemeanor.
3 12 3. An employer who, through repeated violation of section
3 13 91F.2, demonstrates a pattern of employing unauthorized aliens
3 14 may be ordered to pay punitive damages.
3 15 Sec. 6. NEW SECTION. 91F.4 DUTIES AND AUTHORITY OF THE
3 16 COMMISSIONER == ENFORCEMENT BY ATTORNEY GENERAL.
3 17 1. The commissioner shall adopt rules to implement and
3 18 enforce this chapter.
3 19 2. In order to carry out the purposes of this chapter, the
3 20 commissioner or the commissioner's representative, upon
3 21 presenting appropriate credentials to an employer's owner,
3 22 operator, or agent in charge, may:
3 23 a. Inspect employment records relating to the employees of
3 24 the employer.
3 25 b. Interview an employer, owner, operator, agent, or
3 26 employee, during working hours or at other reasonable times.
3 27 3. If the commissioner has reason to believe than an
3 28 employer may be in violation of this chapter, the commissioner
3 29 shall notify the attorney general, and provide the attorney
3 30 general with any supporting information, for prosecution of
3 31 the violation by the attorney general.
3 32 Sec. 7. NEW SECTION. 91F.5 PROHIBITIONS RELATING TO
3 33 CERTAIN ACTIONS BY EMPLOYEES == PENALTY == CIVIL REMEDY.
3 34 1. An employer shall not discharge an employee or take or
3 35 fail to take action regarding an employee's appointment or
4 1 proposed appointment or promotion or proposed promotion, or
4 2 regarding any advantage of an employee as a reprisal for a
4 3 failure by that employee to inform the employer that the
4 4 employee made a disclosure of information to any law
4 5 enforcement agency if the employee reasonably believes the
4 6 information evidences a violation of section 91F.2, 710A.2,
4 7 710A.3, or 710A.4.
4 8 2. Subsection 1 does not apply if the disclosure of the
4 9 information is prohibited by statute.
4 10 3. An employer who violates subsection 1 commits a simple
4 11 misdemeanor.
4 12 4. Subsection 1 may be enforced through a civil action.
4 13 a. An employer who violates subsection 1 is liable to an
4 14 aggrieved employee for affirmative relief, including
4 15 reinstatement, with or without back pay, or any other
4 16 equitable relief the court deems appropriate, including
4 17 attorney fees and costs.
4 18 b. If an employer commits, is committing, or proposes to
4 19 commit an act in violation of subsection 1, an injunction may
4 20 be granted through an action in district court to prohibit the
4 21 person from continuing such acts. The action for injunctive
4 22 relief may be brought by an aggrieved employee or the attorney
4 23 general.
4 24 Sec. 8. NEW SECTION. 710A.1 DEFINITIONS.
4 25 As used in this chapter:
4 26 1. "Commercial sexual activity" means any sex act on
4 27 behalf of which anything of value is given, promised to, or
4 28 received by any person and includes, but is not limited to,
4 29 prostitution, participation in the production of pornography,
4 30 and performance in strip clubs.
4 31 2. "Forced labor or services" means labor or services that
4 32 are performed or provided by another person and that are
4 33 obtained or maintained through any of the following:
4 34 a. Causing or threatening to cause serious physical injury
4 35 to any person.
5 1 b. Physically restraining or threatening to physically
5 2 restrain another person.
5 3 c. Abusing or threatening to abuse the law or legal
5 4 process.
5 5 d. Knowingly destroying, concealing, removing,
5 6 confiscating, or possessing any actual or purported passport
5 7 or other immigration document, or any other actual or
5 8 purported government identification document, of another
5 9 person.
5 10 3. "Labor" means work of economic or financial value.
5 11 4. "Maintain" means, in relation to labor and services, to
5 12 secure continued performance thereof, regardless of any
5 13 initial agreement on the part of the victim to perform such
5 14 type of services.
5 15 5. "Minor" means a person under the age of eighteen years.
5 16 6. "Obtain" means, in relation to labor or services, to
5 17 secure performance thereof.
5 18 7. "Services" means an ongoing relationship between a
5 19 person and the actor in which the person performs activities
5 20 under the supervision of or for the benefit of the actor,
5 21 including commercial sexual activity and sexually explicit
5 22 performances.
5 23 8. "Sexually explicit performance" means a live or public
5 24 act or show intended to arouse or satisfy the sexual desires
5 25 or appeal to the prurient interest of patrons.
5 26 9. "Venture" means any group of two or more persons
5 27 associated in fact, whether or not a legal entity.
5 28 10. "Victim" means a person subjected to the practices set
5 29 forth in section 710A.2, 710A.3, or 710A.4.
5 30 Sec. 9. NEW SECTION. 710A.2 FORCED LABOR AND SERVICES.
5 31 1. A person who knowingly subjects, attempts to subject,
5 32 or engages in a conspiracy to subject another person to forced
5 33 labor or services by causing or threatening to cause serious
5 34 physical injury to that other person is guilty of a class "B"
5 35 felony, except that if that other person is a minor, a person
6 1 who violates this subsection is guilty of a class "A" felony.
6 2 2. A person who knowingly subjects, attempts to subject,
6 3 or engages in a conspiracy to subject another person to forced
6 4 labor or services by physically restraining or threatening to
6 5 physically restrain that other person is guilty of a class "C"
6 6 felony, except that if that other person is a minor, a person
6 7 who violates this subsection is guilty of a class "B" felony.
6 8 3. A person who knowingly subjects, attempts to subject,
6 9 or engages in a conspiracy to subject another person to forced
6 10 labor or services by abusing or threatening to abuse the law
6 11 or legal process is guilty of a class "D" felony, except that
6 12 if that other person is a minor, a person who violates this
6 13 subsection is guilty of a class "C" felony.
6 14 4. A person who knowingly subjects, attempts to subject,
6 15 or engages in a conspiracy to subject another person to forced
6 16 labor or services by knowingly destroying, concealing,
6 17 removing, confiscating, or possessing any actual or purported
6 18 passport or other immigration document, or any other actual or
6 19 purported government identification document, of that other
6 20 person is guilty of a class "D" felony, except that if that
6 21 other person is a minor, a person who violates this subsection
6 22 is guilty of a class "C" felony.
6 23 Sec. 10. NEW SECTION. 710A.3 HUMAN TRAFFICKING == FORCED
6 24 LABOR AND SERVICES.
6 25 1. A person shall not knowingly recruit, entice, harbor,
6 26 transport, provide, or obtain by any means, or attempt to
6 27 recruit, entice, harbor, transport, provide, or obtain by any
6 28 means, another person, with the intent that the other person
6 29 be subjected to forced labor or services.
6 30 2. A person shall not knowingly benefit, financially or by
6 31 receiving anything of value, from participation in a venture
6 32 that involves a violation of this section.
6 33 3. A person who violates this section is guilty of a class
6 34 "B" felony, except that if the other person is a minor, a
6 35 person who violates this section is guilty of a class "A"
7 1 felony.
7 2 Sec. 11. NEW SECTION. 710A.4 HUMAN TRAFFICKING == SEXUAL
7 3 EXPLOITATION OF A MINOR.
7 4 1. A person shall not knowingly recruit, entice, harbor,
7 5 transport, provide, or obtain by any means, or attempt to
7 6 recruit, entice, harbor, transport, provide, or obtain by any
7 7 means, a minor, with the intent that the minor be subjected to
7 8 sexual exploitation in violation of section 728.12.
7 9 2. A person shall not knowingly benefit, financially or by
7 10 receiving anything of value, from participation in a venture
7 11 that involves a violation of section 728.12.
7 12 3. A person who violates this section is guilty of a class
7 13 "A" felony.
7 14 Sec. 12. NEW SECTION. 710A.5 SENTENCING ENHANCEMENTS.
7 15 1. If a violation of section 710A.2 or 710A.3 results in
7 16 the death of the person or if the person is kidnapped in
7 17 violation of section 710.2 or 710.3, the defendant is guilty
7 18 of a class "A" felony.
7 19 2. In sentencing a person for a violation of section
7 20 710A.2, 710A.3, or 710A.4, the court shall sentence the
7 21 defendant to an additional term of confinement of ten years in
7 22 cases in which the victim was maintained or held for a period
7 23 greater than one hundred eighty days or if the offense
7 24 involved more than ten victims.
7 25 Sec. 13. NEW SECTION. 710A.6 CORPORATE LIABILITY.
7 26 If a corporation is convicted of an offense pursuant to
7 27 section 710A.2, 710A.3, or 710A.4, in addition to any other
7 28 penalties provided in this chapter, the court shall, where
7 29 appropriate, do any of the following:
7 30 1. Order the corporation's dissolution or reorganization.
7 31 2. Order the suspension or revocation of any license,
7 32 permit, or prior approval granted by a state agency.
7 33 3. Order the surrender of the corporation's organizational
7 34 authority if organized under state law or revocation of the
7 35 corporation's authority to conduct business in this state.
8 1 Sec. 14. NEW SECTION. 710A.7 RESTITUTION AND ADDITIONAL
8 2 FINE.
8 3 In addition to any fine or penalty imposed under this
8 4 chapter, the court shall order a defendant convicted of a
8 5 violation of this chapter to make restitution for damages
8 6 resulting directly from the violation, to the victim, pursuant
8 7 to chapter 910, and shall include an additional fine of the
8 8 greater of either the gross income or value of the victim's
8 9 labor or services or the value of the victim's wages of not
8 10 less than the applicable federal minimum wage under the
8 11 federal Fair Labor Standards Act.
8 12 Sec. 15. NEW SECTION. 915.51 GENERAL RIGHTS OF HUMAN
8 13 TRAFFICKING VICTIMS.
8 14 1. In addition to other victim rights provided in this
8 15 chapter, including the right to receive victim compensation
8 16 pursuant to section 915.84 and the right to exert victim
8 17 counseling privileges pursuant to section 915.20A, victims of
8 18 a crime described in section 710A.2, 710A.3, or 710A.4 shall
8 19 have the following rights without regard to their immigration
8 20 status:
8 21 a. The right to receive prompt medical care including
8 22 mental health care, food, shelter, and other assistance, if
8 23 necessary.
8 24 b. The right to have access to legal assistance and
8 25 translation services, if necessary.
8 26 c. The right to receive reasonable police protection if a
8 27 victim's safety is at risk or if there is any danger of
8 28 additional harm, including measures to protect victims and
8 29 their family members from intimidation and threats of
8 30 reprisals from traffickers and their associates and ensuring
8 31 that the names and identifying information of victims and
8 32 their family members are not disclosed to the public.
8 33 2. The departments of human services, human rights,
8 34 health, public safety, justice, and other public state
8 35 agencies shall provide the requisite services to assist in the
9 1 administration of this section.
9 2 Sec. 16. DEPARTMENT OF JUSTICE == HUMAN TRAFFICKING CRIMES
9 3 AND RELATED OFFENSES == INVESTIGATION AND PROSECUTION. There
9 4 is appropriated from the general fund to the department of
9 5 justice for the fiscal year beginning July 1, 2006, and ending
9 6 June 30, 2007, the following amount, or so much as is
9 7 necessary, to be used for the purposes designated:
9 8 For the investigation and prosecution of human trafficking
9 9 crimes and related offenses pursuant to sections 710A.2,
9 10 710A.3, and 710A.4 and the employment of unauthorized aliens
9 11 pursuant to section 91F.2:
9 12 .................................................. $ 100,000
9 13 Notwithstanding section 8.33, moneys appropriated in this
9 14 section that remain unencumbered or unobligated at the close
9 15 of the fiscal year shall not revert but shall remain available
9 16 for expenditure for the purposes designated until the close of
9 17 the succeeding fiscal year.
9 18 EXPLANATION
9 19 This bill relates to employment of unauthorized aliens and
9 20 human trafficking and related offenses and provides penalties.
9 21 New Code section 73A.22 is created to prohibit state
9 22 entities from awarding a contract or providing developmental
9 23 assistance to a person who violates the provisions of the bill
9 24 concerning the employment of unauthorized aliens as
9 25 established in new Code section 91F.2. The bill defines
9 26 "developmental assistance" as any form of public assistance,
9 27 including tax incentives, grants, or other subsidies. The
9 28 bill provides that a person violating this new provision shall
9 29 have their contract or developmental assistance terminated.
9 30 The bill grants state entities the right to enforce their
9 31 rights in district court and provides that a person violating
9 32 this provision shall be prohibited from receiving a state
9 33 contract or developmental assistance for five years.
9 34 The bill creates new Code chapter 91F prohibiting employers
9 35 from employing unauthorized aliens. The bill defines
10 1 "unauthorized aliens" as any person who is not a citizen or
10 2 legal resident and who has not been lawfully admitted to the
10 3 United States for permanent residence or who is not authorized
10 4 to work in the United States. An "employer" is any person who
10 5 employs for wages, paid on an hourly basis, one or more
10 6 natural persons. The bill prohibits employers from knowingly
10 7 employing an unauthorized alien. The bill provides that a
10 8 violation can occur in cases in which an employer actually
10 9 knows a person is an unauthorized alien as well as a situation
10 10 in which any person exercising reasonable care should know
10 11 from facts and circumstances that a person is an unauthorized
10 12 alien. The bill provides that a violation of this chapter is
10 13 subject to a civil penalty of $1,000 and a corporate officer
10 14 of an employer who, through repeated violations of the
10 15 chapter, demonstrates a pattern of employing unauthorized
10 16 aliens, commits a serious misdemeanor. An employer who
10 17 demonstrates a pattern of employing unauthorized aliens may be
10 18 ordered to pay punitive damages. The bill further authorizes
10 19 the labor commissioner within the department of workforce
10 20 development to adopt rules to administer and enforce this new
10 21 chapter and grants the commissioner the authority to
10 22 investigate employer records and to interview employees. The
10 23 bill provides that the commissioner shall forward any
10 24 suspected violations of this chapter to the attorney general
10 25 for prosecution. The bill further provides that an employer
10 26 shall not discharge an employee from or take or fail to take
10 27 action regarding an employee's appointment or proposed
10 28 appointment, promotion or proposed promotion, or regarding any
10 29 advantage of an employee as a reprisal for a failure by that
10 30 employee to inform the employer that the employee made a
10 31 disclosure of information to any law enforcement agency if the
10 32 employee reasonably believes the information evidences a
10 33 violation of Code section 91F.2, 710A.2, 710A.3, or 710A.4.
10 34 An employer who violates the provisions of this chapter is
10 35 liable to an aggrieved employee for affirmative relief
11 1 including reinstatement, with or without back pay, or any
11 2 other equitable relief the court deems appropriate, including
11 3 attorney fees and costs. In addition, an action for
11 4 injunctive relief may be brought by an aggrieved employee or
11 5 the attorney general.
11 6 The bill provides that a person who knowingly subjects,
11 7 attempts to subject, or engages in a conspiracy to subject
11 8 another person to forced labor or services by causing or
11 9 threatening to cause serious physical injury to that person,
11 10 by physically restraining or threatening to physically
11 11 restrain another person, by abusing or threatening to abuse
11 12 the law or legal process, or by destroying, concealing,
11 13 removing, confiscating, or possessing any actual or purported
11 14 passport or other immigration document, or any other actual or
11 15 purported government identification document, of another
11 16 person is guilty of the crime of forced labor and services and
11 17 is subject to a class "B" felony, a class "C" felony, or a
11 18 class "D" felony, depending upon the circumstances of the
11 19 offense. A class "B" felony is punishable by confinement for
11 20 no more than 25 years, a class "C" felony is punishable by
11 21 confinement for no more than 10 years and a fine of at least
11 22 $1,000 but not more than $10,000, and a class "D" felony is
11 23 punishable by confinement for no more than five years and a
11 24 fine of at least $750 but not more than $7,500. The bill
11 25 provides sentencing enhancements for a crime involving a minor
11 26 victim, depending on the circumstances of the offense, ranging
11 27 from a class "A" felony, punishable by confinement for life
11 28 without the possibility of parole, to a class "C" felony.
11 29 The bill provides that a person who knowingly recruits,
11 30 entices, harbors, transports, provides, or obtains by any
11 31 means, or attempts to recruit, entice, harbor, transport,
11 32 provide, or obtain by any means, another person, with the
11 33 intent that the person be subjected to forced labor or
11 34 services, or a person who knowingly benefits, financially or
11 35 by receiving anything of value, from participation in a
12 1 venture that involves forced labor or services, is guilty of a
12 2 class "B" felony, except if the person being trafficked is a
12 3 minor, a person who commits either act is guilty of a class
12 4 "A" felony.
12 5 The bill further provides that a person who knowingly
12 6 recruits, entices, harbors, transports, provides, or obtains
12 7 by any means, or attempts to recruit, entice, harbor,
12 8 transport, provide, or obtain by any means, a minor, with the
12 9 intent that the minor be subjected to sexual exploitation in
12 10 violation of Code section 728.12, Iowa's sexual exploitation
12 11 of a minor statute, or a person who knowingly benefits,
12 12 financially or by receiving anything of value, from
12 13 participation in a venture that involves a violation of Code
12 14 section 728.12, is guilty of a class "A" felony.
12 15 The bill provides sentencing enhancements for the crimes of
12 16 forced labor and services and human trafficking in forced
12 17 labor and services. The bill provides that if the commission
12 18 of any such offense results in the death of the person or if
12 19 the person is kidnapped, the defendant is guilty of a class
12 20 "A" felony.
12 21 The bill provides that if a corporation is convicted of the
12 22 crimes of forced labor and services, human trafficking in
12 23 forced labor and services, or human trafficking in the sexual
12 24 exploitation of a minor, the court shall order the
12 25 corporation's dissolution or reorganization; order the
12 26 suspension or revocation of any license, permit, or prior
12 27 approval granted by a state agency in Iowa; or order the
12 28 surrender of the corporation's charter if organized under
12 29 state law or revocation of the corporation's certificate to
12 30 conduct business in the state.
12 31 The bill provides that a victim under the bill shall
12 32 receive restitution for damages resulting directly from the
12 33 violation pursuant to Code chapter 910, which shall include a
12 34 fine of the greater of either the gross income or value of the
12 35 victim's labor or services or the value of the victim's labor
13 1 as guaranteed under the provisions of the federal Fair Labor
13 2 Standards Act.
13 3 The bill provides that in addition to other victim rights
13 4 provided in Code chapter 915, including the right to receive
13 5 victim compensation pursuant to Code section 915.84 and the
13 6 right to exert victim counseling privileges pursuant to
13 7 section 915.20A, victims shall have the right to receive
13 8 prompt medical care including mental health care, food,
13 9 shelter, and other assistance; the right to have access to
13 10 legal assistance and translation services; and the right to
13 11 receive reasonable police protection; and including ensuring
13 12 that the names and identifying information of victims and
13 13 their family members are not disclosed to the public if a
13 14 victim's safety is at risk or if there is any danger of
13 15 additional harm, without regard to their immigration status.
13 16 The bill authorizes the attorney general to appoint a
13 17 special assistant attorney general who shall, under the
13 18 direction of the attorney general, investigate and prosecute
13 19 all claims relating to the crime of human trafficking and
13 20 related offenses and the employment of unauthorized aliens and
13 21 appropriates up to $100,000 from the state general fund to the
13 22 department of justice for the fiscal year beginning July 1,
13 23 2006, and ending June 30, 2007, to be used by the department
13 24 of justice for such purposes. Notwithstanding Code section
13 25 8.33, appropriated moneys that remain unencumbered or
13 26 unobligated at the close of the fiscal year do not revert but
13 27 remain available for expenditure for the purposes designated
13 28 until the close of the succeeding fiscal year.
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