Senate File 2257 - Introduced



                                       SENATE FILE       
                                       BY  KREIMAN


    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
  2    providing a penalty.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  4 TLSB 5662XS 82
  5 ec/rj/8

PAG LIN



  1  1    Section 1.  NEW SECTION.  91F.1  DEFINITIONS.
  1  2    As used in this chapter, unless the context otherwise
  1  3 requires:
  1  4    1.  "Agency" means a state agency, as defined in section
  1  5 8A.101, or political subdivision of this state that issues a
  1  6 license for purposes of operating a business in this state.
  1  7    2.  "Basic pilot program" means the basic employment
  1  8 verification pilot program as jointly administered by the
  1  9 United States department of homeland security and the social
  1 10 security administration or its successor program.
  1 11    3.  "Employee" means an individual who is employed in this
  1 12 state for wages paid on an hourly basis by an employer.
  1 13    4.  "Employer" means any person that transacts business in
  1 14 this state, that has a license issued by an agency in this
  1 15 state, and that employs one or more individuals who perform
  1 16 employment services in this state.  "Employer" includes this
  1 17 state, any political subdivision of this state, and
  1 18 self=employed persons.
  1 19    5.  "Knowingly employ an unauthorized alien" means the
  1 20 actions described in 8 U.S.C. } 1324a.  This term shall be
  1 21 interpreted consistently with 8 U.S.C. } 1324a and any
  1 22 applicable federal regulations.
  1 23    6.  "License" means any agency permit, certificate,
  1 24 approval, registration, charter, or similar form of
  1 25 authorization that is required by law and that is issued by an
  1 26 agency for the purposes of operating a business in this state.
  1 27 "License" includes but is not limited to articles of
  1 28 incorporation, a certificate of limited partnership, a
  1 29 statement of qualification for a limited liability
  1 30 partnership, or any applicable tax permit.  "License" does not
  1 31 include any professional license.
  1 32    7.  "Unauthorized alien" means an alien who does not have
  1 33 the legal right or authorization under federal law to work in
  1 34 the United States as described in 8 U.S.C. } 1324a(h)(3).
  1 35    Sec. 2.  NEW SECTION.  91F.2  VERIFICATION OF EMPLOYMENT
  2  1 ELIGIBILITY == BASIC PILOT PROGRAM.
  2  2    Beginning January 1, 2009, every employer, after hiring an
  2  3 employee, shall verify the employment eligibility of the
  2  4 employee through the basic pilot program.
  2  5    Sec. 3.  NEW SECTION.  91F.3  EMPLOYMENT OF UNAUTHORIZED
  2  6 ALIENS == PROHIBITION == LICENSE SUSPENSION AND REVOCATION.
  2  7    1.  An employer shall not knowingly employ an unauthorized
  2  8 alien.
  2  9    2.  a.  In determining whether an employee is an
  2 10 unauthorized alien, a court shall consider only the federal
  2 11 government's determination pursuant to 8 U.S.C. } 1373(c).
  2 12 The federal government's determination creates a rebuttable
  2 13 presumption of the employee's lawful status.  The court may
  2 14 take judicial notice of the federal government's determination
  2 15 and may request the federal government to provide automated or
  2 16 testimonial verification pursuant to 8 U.S.C. } 1373(c).
  2 17    b.  An employer who establishes that the employer has
  2 18 complied in good faith with the requirements of 8 U.S.C. }
  2 19 1324b constitutes an affirmative defense that the employer did
  2 20 not knowingly employ an unauthorized alien.  In addition,
  2 21 proof of verifying the employment authorization of an employee
  2 22 through the basic pilot program creates a rebuttable
  2 23 presumption that an employer did not knowingly employ an
  2 24 unauthorized alien.
  2 25    3.  For a first violation of subsection 1 by an employer
  2 26 during any three=year period, the court shall do all of the
  2 27 following:
  2 28    a.  Order the employer to terminate the employment of all
  2 29 unauthorized aliens.
  2 30    b.  Order the employer to be subject to a three=year
  2 31 probationary period.  During the probationary period the
  2 32 employer shall file quarterly reports with the county attorney
  2 33 regarding each new employee who is hired by the employer to
  2 34 work at the specific location where the unauthorized alien
  2 35 involved in the violation performed work.
  3  1    c.  Order the employer to file a signed, sworn affidavit
  3  2 with the county attorney within three business days after the
  3  3 order is issued.  The affidavit shall state that the employer
  3  4 has terminated the employment of all unauthorized aliens and
  3  5 that the employer will not knowingly employ an unauthorized
  3  6 alien.
  3  7    (1)  The court shall order the appropriate agencies to
  3  8 suspend all licenses that are held by the employer if the
  3  9 employer fails to file a signed, sworn affidavit with the
  3 10 county attorney within three business days after the order is
  3 11 issued.  All licenses that are suspended under this paragraph
  3 12 "c" shall remain suspended until the employer files a signed,
  3 13 sworn affidavit with the county attorney.  Notwithstanding any
  3 14 other law, on filing of the affidavit the suspended licenses
  3 15 shall be reinstated immediately by the appropriate agencies.
  3 16 For the purposes of this paragraph "c", the licenses that are
  3 17 subject to suspension under this paragraph "c" are all
  3 18 licenses that are held by the employer and that are necessary
  3 19 to operate the employer's business at the employer's business
  3 20 location where the unauthorized alien performed work.  If a
  3 21 license is not necessary to operate the employer's business at
  3 22 the specific location where the unauthorized alien performed
  3 23 work, but a license is necessary to operate the employer's
  3 24 business in general, the licenses that are subject to
  3 25 suspension under this paragraph are all licenses that are held
  3 26 by the employer at the employer's primary place of business.
  3 27    (2)  On receipt of the court's order and notwithstanding
  3 28 any other law, the appropriate agencies shall suspend the
  3 29 licenses according to the court's order.  The court shall send
  3 30 a copy of the court's order to the attorney general and the
  3 31 attorney general shall maintain the copy pursuant to section
  3 32 91F.5.
  3 33    (3)  A court may order the appropriate agencies to suspend
  3 34 all licenses described in this paragraph "c" that are held by
  3 35 the employer for a period of time not to exceed ten business
  4  1 days in the discretion of the court.  The court shall base its
  4  2 decision to suspend for up to ten business days on any
  4  3 evidence or information submitted to the court during the
  4  4 action for a violation of this section and shall consider, if
  4  5 relevant, the number of unauthorized aliens employed by the
  4  6 employer; any prior misconduct by the employer; the degree of
  4  7 harm resulting from the violation; whether the employer made
  4  8 good faith efforts to comply with any applicable requirements;
  4  9 the duration of the violation; the role of the directors,
  4 10 officers, or principals of the employer in the violation; and
  4 11 any other factors the court deems appropriate.
  4 12    4.  For a second violation of this section by an employer
  4 13 during the period of probation as provided in subsection 3,
  4 14 the court shall order the appropriate agencies to permanently
  4 15 revoke all licenses that are held by the employer and that are
  4 16 necessary to operate the employer's business at the employer's
  4 17 business location where the unauthorized alien performed work.
  4 18 If a license is not necessary to operate the employer's
  4 19 business at the specific location where the unauthorized alien
  4 20 performed work, but a license is necessary to operate the
  4 21 employer's business in general, the court shall order the
  4 22 appropriate agencies to permanently revoke all licenses that
  4 23 are held by the employer at the employer's primary place of
  4 24 business.  On receipt of the order and notwithstanding any
  4 25 other law, the appropriate agencies shall immediately revoke
  4 26 the licenses.
  4 27    5.  An action for a violation of this section shall be
  4 28 brought against the employer by the county attorney in the
  4 29 county where the unauthorized alien employee is employed.  The
  4 30 county attorney shall not bring an action against any employer
  4 31 for any violation of this section that occurs before January
  4 32 1, 2009.  A second violation of this section shall be based
  4 33 only on an unauthorized alien who is employed by the employer
  4 34 after an action has been brought resulting in a court order
  4 35 for a violation of this section.
  5  1    Sec. 4.  NEW SECTION.  91F.4  COMPLAINTS == INVESTIGATION
  5  2 == REFERRAL.
  5  3    1.  On receipt of a complaint that an employer is in
  5  4 violation of section 91F.3, the attorney general or county
  5  5 attorney shall investigate the complaint.  When investigating
  5  6 a complaint, the attorney general or county attorney shall
  5  7 verify the work authorization of the alleged unauthorized
  5  8 alien with the federal government pursuant to 8 U.S.C. }
  5  9 1373(c).  A state, county, or local official shall not attempt
  5 10 to independently make a final determination on whether an
  5 11 alien is authorized to work in the United States.  An alien's
  5 12 immigration status or work authorization status shall be
  5 13 verified with the federal government pursuant to 8 U.S.C. }
  5 14 1373(c).  A person who knowingly files a false and frivolous
  5 15 complaint under this subsection is guilty of a simple
  5 16 misdemeanor.
  5 17    2.  If, after an investigation, the attorney general or
  5 18 county attorney determines that the complaint is not
  5 19 frivolous, the attorney general or county attorney shall
  5 20 notify the United States immigration and customs enforcement
  5 21 and the local law enforcement agency of the unauthorized
  5 22 alien.  If the complaint was originally filed with the
  5 23 attorney general, the attorney general shall notify the
  5 24 appropriate county attorney to bring an action pursuant to
  5 25 section 91F.3.
  5 26    Sec. 5.  NEW SECTION.  91F.5  ATTORNEY GENERAL == DATABASE.
  5 27    The attorney general shall maintain copies of court orders
  5 28 that are received pursuant to section 91F.3, subsection 3, and
  5 29 shall maintain a database of the employers with first
  5 30 violations of section 91F.3 and make the court orders
  5 31 available on the attorney general's internet site.
  5 32    Sec. 6.  NEW SECTION.  91F.6  EMPLOYER ACTIONS == FEDERAL
  5 33 OR STATE LAW COMPLIANCE.
  5 34    This chapter shall not be construed to require an employer
  5 35 to take any action that the employer believes in good faith
  6  1 would violate federal or state law.
  6  2                           EXPLANATION
  6  3    This bill prohibits employers from knowingly employing an
  6  4 unauthorized alien.  An unauthorized alien is an alien who
  6  5 does not have the legal right or authorization under federal
  6  6 law to work in the United States.
  6  7    New Code section 91F.1 provides applicable definitions.
  6  8 The bill defines "agency" as a state agency, as defined in
  6  9 Code section 8A.101, or political subdivision of this state
  6 10 that issues a license for purposes of operating a business in
  6 11 this state.  The bill defines "license" as any agency permit,
  6 12 certificate, approval, registration, charter, or similar form
  6 13 of authorization that is required by law and that is issued by
  6 14 an agency for the purposes of operating a business in this
  6 15 state.  Professional licenses are excluded from this
  6 16 definition.
  6 17    New Code section 91F.2 requires employers, beginning
  6 18 January 1, 2009, to verify the employment eligibility of an
  6 19 employee hired through the basic pilot program.  The basic
  6 20 pilot program is defined as the basic employment verification
  6 21 pilot program as jointly administered by the United States
  6 22 department of homeland security and the social security
  6 23 administration.
  6 24    New Code section 91F.3 provides that an employer shall not
  6 25 knowingly hire an unauthorized alien.  The Code section
  6 26 provides that the determination of a person's status as an
  6 27 unauthorized alien shall be governed by federal law.  An
  6 28 employer who has complied in good faith with federal
  6 29 requirements relative to the employment of unauthorized aliens
  6 30 establishes an affirmative defense and proof that the employer
  6 31 verified the employee's status through the basic pilot program
  6 32 creates a rebuttable presumption that an employer did not
  6 33 knowingly employ an unauthorized alien.  The Code section
  6 34 provides that for a first violation of this Code section, the
  6 35 court shall order a mandatory three=year probation and may
  7  1 suspend all licenses held by the employer for a maximum of 10
  7  2 days.  In addition, the bill provides that the employer must
  7  3 file a signed, sworn affidavit with the county attorney within
  7  4 three business days, stating that the employer has fired all
  7  5 unauthorized aliens and that the employer will not
  7  6 intentionally or knowingly employ any unauthorized alien.  For
  7  7 a second violation during a period of probation, the court is
  7  8 required to order the appropriate licensing agencies to
  7  9 permanently revoke all licenses that are held by the employer.
  7 10 The bill provides that an action for a violation of this Code
  7 11 section shall be brought against the employer by the county
  7 12 attorney in the county where the unauthorized alien employee
  7 13 is employed but no action may be brought against any employer
  7 14 for any violation of this Code section that occurs before
  7 15 January 1, 2009.
  7 16    New Code section 91F.4 concerns investigating complaints
  7 17 that an employer knowingly hired an unauthorized alien.  The
  7 18 bill provides that the attorney general, or county attorney,
  7 19 shall verify the work authorization of the alleged
  7 20 unauthorized alien with the federal government.  If the
  7 21 attorney general or county attorney determines that the
  7 22 complaint is not frivolous, the bill provides that the
  7 23 attorney general or county attorney shall notify the United
  7 24 States immigration and customs enforcement and the local law
  7 25 enforcement agency of the unauthorized alien and the
  7 26 appropriate county attorney shall be notified by the attorney
  7 27 general if applicable.  The bill provides that a person who
  7 28 knowingly files a false and frivolous complaint is guilty of a
  7 29 simple misdemeanor.  A simple misdemeanor is punishable by
  7 30 confinement for no more than 30 days or a fine of at least $65
  7 31 but not more than $625 or by both.
  7 32    New Code section 91F.5 requires the attorney general to
  7 33 maintain copies of court orders that are received pursuant to
  7 34 the bill and to maintain a database of the employers who have
  7 35 a first violation of new Code section 91F.3 and make the court
  8  1 orders available on the attorney general's internet site.
  8  2 LSB 5662XS 82
  8  3 ec/rj/8.1