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