Senate File 436 - Introduced SENATE FILE BY COMMITTEE ON JUDICIARY (SUCCESSOR TO SSB 1283) 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 2815SV 82 6 ec/je/5 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 section 710A.2 and the employment of 1 9 unauthorized aliens pursuant to section 91F.2. 1 10 Sec. 2. NEW SECTION. 73A.22 STATE ASSISTANCE 1 11 RESTRICTIONS == PERSONS EMPLOYING UNAUTHORIZED ALIENS. 1 12 1. a. For purposes of this section, "developmental 1 13 assistance" means any form of public assistance, including tax 1 14 expenditures, made for the purpose of stimulating the economic 1 15 development of a corporation, industry, geographic 1 16 jurisdiction, or any other sector of the state's economy, 1 17 including but not limited to industrial development bonds, 1 18 training grants, loans, loan guarantees, enterprise zones, 1 19 empowerment zones, tax increment financing, fee waivers, land 1 20 price subsidies, infrastructure constructed or improved for 1 21 the benefit of a single business or defined group of 1 22 businesses at the time it is built or improved, matching 1 23 funds, tax abatements, tax credits and tax discounts of every 1 24 kind, including corporate, franchise, personal income, sales 1 25 and use, raw materials, real property, job creation, 1 26 individual investment, excise, utility, inventory, accelerated 1 27 depreciation, and research and development tax credits and 1 28 discounts. 1 29 b. A state department, institution, or agency, or any 1 30 board member, commissioner, director, manager, or other person 1 31 connected with any such department, institution, or agency, 1 32 shall not award a contract or provide developmental assistance 1 33 to an employer as defined in section 91F.1 in which the 1 34 employer or corporate officer of the employer has been found 1 35 in violation of section 91F.2 within the past five years. 2 1 2. Any contract or developmental assistance awarded shall 2 2 provide that if, during the effective period of the contract 2 3 or developmental assistance, the vendor, contractor, 2 4 subcontractor, or developmental assistance recipient violates 2 5 the provisions of section 91F.2, the contract or developmental 2 6 assistance shall be terminated. 2 7 3. A state department, institution, or agency may enforce 2 8 its rights under this section by instituting a civil action in 2 9 district court in this state. In addition, a state 2 10 department, institution, or agency shall not award a contract 2 11 or provide developmental assistance to any person that 2 12 violates this section for a period of five years after the 2 13 date of the violation. 2 14 Sec. 3. NEW SECTION. 91F.1 DEFINITIONS. 2 15 As used in this chapter: 2 16 1. "Commissioner" means the labor commissioner. 2 17 2. "Employee" means a natural person who is employed in 2 18 this state for wages paid on an hourly basis by an employer. 2 19 3. "Employer" means a person, as defined in section 4.1, 2 20 who in this state employs for wages, paid on an hourly basis, 2 21 one or more natural persons. An employer does not include a 2 22 client, patient, customer, or other person who obtains 2 23 professional services from a licensed person who provides the 2 24 services on a fee service basis or as an independent 2 25 contractor, or the state, or an agency or governmental 2 26 subdivision of the state. 2 27 4. "Unauthorized alien" means a person who is not a 2 28 citizen or legal resident and who has not been lawfully 2 29 admitted to the United States for permanent residence or who 2 30 is not authorized to work in the United States. 2 31 Sec. 4. NEW SECTION. 91F.2 UNAUTHORIZED ALIENS == 2 32 EMPLOYER PROHIBITION. 2 33 An employer shall not knowingly employ as an employee an 2 34 unauthorized alien. For purposes of this section, "knowingly 2 35 employ as an employee an unauthorized alien" includes cases in 3 1 which an employer actually knows a person is an unauthorized 3 2 alien and cases in which any person exercising reasonable care 3 3 should know from facts and circumstances that a person is an 3 4 unauthorized alien. 3 5 Sec. 5. NEW SECTION. 91F.3 PENALTIES. 3 6 1. An employer who violates section 91F.2 is subject to a 3 7 civil penalty of up to one thousand dollars. 3 8 2. A corporate officer of an employer who, through 3 9 repeated violation of section 91F.2, demonstrates a pattern of 3 10 employing unauthorized aliens commits a serious misdemeanor. 3 11 3. An employer who, through repeated violation of section 3 12 91F.2, demonstrates a pattern of employing unauthorized aliens 3 13 may be ordered to pay punitive damages. 3 14 Sec. 6. NEW SECTION. 91F.4 DUTIES AND AUTHORITY OF THE 3 15 COMMISSIONER == ENFORCEMENT BY ATTORNEY GENERAL. 3 16 1. The commissioner shall adopt rules to administer and 3 17 enforce this chapter. 3 18 2. In order to carry out the purposes of this chapter, the 3 19 commissioner or the commissioner's representative, upon 3 20 presenting appropriate credentials to an employer's owner, 3 21 operator, or agent in charge, may: 3 22 a. Inspect employment records relating to the employees of 3 23 the employer. 3 24 b. Interview an employer, owner, operator, agent, or 3 25 employee, during working hours or at other reasonable times. 3 26 3. If the commissioner has reason to believe than an 3 27 employer may be in violation of this chapter, the commissioner 3 28 shall notify the attorney general, and provide the attorney 3 29 general with any supporting information, for prosecution of 3 30 the violation by the attorney general. 3 31 Sec. 7. NEW SECTION. 91F.5 PROHIBITIONS RELATING TO 3 32 CERTAIN ACTIONS BY EMPLOYEES == PENALTY == CIVIL REMEDY. 3 33 1. An employer shall not discharge an employee or take or 3 34 fail to take action regarding an employee's appointment or 3 35 proposed appointment or promotion or proposed promotion, or 4 1 regarding any advantage of an employee as a reprisal for a 4 2 failure by that employee to inform the employer that the 4 3 employee made a disclosure of information to any law 4 4 enforcement agency if the employee reasonably believes the 4 5 information evidences a violation of section 91F.2 or 710A.2. 4 6 2. Subsection 1 does not apply if the disclosure of the 4 7 information is prohibited by statute. 4 8 3. An employer who violates subsection 1 commits a simple 4 9 misdemeanor. 4 10 4. Subsection 1 may be enforced through a civil action. 4 11 a. An employer who violates subsection 1 is liable to an 4 12 aggrieved employee for affirmative relief, including 4 13 reinstatement, with or without back pay, or any other 4 14 equitable relief the court deems appropriate, including 4 15 attorney fees and costs. 4 16 b. If an employer commits, is committing, or proposes to 4 17 commit an act in violation of subsection 1, an injunction may 4 18 be granted through an action in district court to prohibit the 4 19 person from continuing such acts. The action for injunctive 4 20 relief may be brought by an aggrieved employee or the attorney 4 21 general. 4 22 Sec. 8. DEPARTMENT OF JUSTICE == HUMAN TRAFFICKING CRIMES 4 23 AND RELATED OFFENSES == INVESTIGATION AND PROSECUTION. There 4 24 is appropriated from the general fund to the department of 4 25 justice for the fiscal year beginning July 1, 2007, and ending 4 26 June 30, 2008, the following amount, or so much as is 4 27 necessary, to be used for the purposes designated: 4 28 For the investigation and prosecution of human trafficking 4 29 crimes and related offenses pursuant to section 710A.2, and 4 30 the employment of unauthorized aliens pursuant to section 4 31 91F.2: 4 32 .................................................. $ 100,000 4 33 Notwithstanding section 8.33, moneys appropriated in this 4 34 section that remain unencumbered or unobligated at the close 4 35 of the fiscal year shall not revert but shall remain available 5 1 for expenditure for the purposes designated until the close of 5 2 the succeeding fiscal year. 5 3 EXPLANATION 5 4 This bill relates to employment of unauthorized aliens and 5 5 enforcement of human trafficking offenses and related offenses 5 6 and provides penalties. 5 7 New Code section 73A.22 is created to prohibit state 5 8 entities from awarding a contract or providing developmental 5 9 assistance to a person who violates the provisions of the bill 5 10 concerning the employment of unauthorized aliens as 5 11 established in new Code section 91F.2. The bill defines 5 12 "developmental assistance" as any form of public assistance, 5 13 including tax incentives, grants, or other subsidies. The 5 14 bill provides that a person violating this new provision shall 5 15 have their contract or developmental assistance terminated. 5 16 The bill grants state entities the right to enforce their 5 17 rights in district court and provides that a person violating 5 18 this provision shall be prohibited from receiving a state 5 19 contract or developmental assistance for five years. 5 20 The bill creates new Code chapter 91F prohibiting employers 5 21 from employing unauthorized aliens. The bill defines 5 22 "unauthorized alien" as any person who is not a citizen or 5 23 legal resident and who has not been lawfully admitted to the 5 24 United States for permanent residence or who is not authorized 5 25 to work in the United States. An "employer" is any person who 5 26 employs for wages, paid on an hourly basis, one or more 5 27 natural persons, other than the state or governmental 5 28 subdivisions of the state. The bill prohibits employers from 5 29 knowingly employing an unauthorized alien. The bill provides 5 30 that a violation can occur in cases in which an employer 5 31 actually knows a person is an unauthorized alien as well as a 5 32 situation in which any person exercising reasonable care 5 33 should know from facts and circumstances that a person is an 5 34 unauthorized alien. The bill provides that a violation of 5 35 this chapter is subject to a civil penalty of $1,000 and a 6 1 corporate officer of an employer who, through repeated 6 2 violations of the chapter, demonstrates a pattern of employing 6 3 unauthorized aliens, commits a serious misdemeanor. An 6 4 employer who demonstrates a pattern of employing unauthorized 6 5 aliens may be ordered to pay punitive damages. The bill 6 6 further authorizes the labor commissioner within the 6 7 department of workforce development to adopt rules to 6 8 administer and enforce this new chapter and grants the 6 9 commissioner the authority to investigate employer records and 6 10 to interview employees. The bill provides that the 6 11 commissioner shall forward any suspected violations of this 6 12 chapter to the attorney general for prosecution. The bill 6 13 further provides that an employer shall not discharge an 6 14 employee from or take or fail to take action regarding an 6 15 employee's appointment or proposed appointment, promotion or 6 16 proposed promotion, or regarding any advantage of an employee 6 17 as a reprisal for a failure by that employee to inform the 6 18 employer that the employee made a disclosure of information to 6 19 any law enforcement agency if the employee reasonably believes 6 20 the information evidences a violation of Code section 91F.2 or 6 21 710A.2. An employer who violates the provisions of this 6 22 chapter is liable to an aggrieved employee for affirmative 6 23 relief including reinstatement, with or without back pay, or 6 24 any other equitable relief the court deems appropriate, 6 25 including attorney fees and costs. In addition, an action for 6 26 injunctive relief may be brought by an aggrieved employee or 6 27 the attorney general. 6 28 The bill authorizes the attorney general to appoint a 6 29 special assistant attorney general who shall, under the 6 30 direction of the attorney general, investigate and prosecute 6 31 all claims relating to the crime of human trafficking and 6 32 related offenses and the employment of unauthorized aliens and 6 33 appropriates up to $100,000 from the state general fund to the 6 34 department of justice for the fiscal year beginning July 1, 6 35 2007, and ending June 30, 2008, to be used by the department 7 1 of justice for such purposes. Notwithstanding Code section 7 2 8.33, appropriated moneys that remain unencumbered or 7 3 unobligated at the close of the fiscal year do not revert but 7 4 remain available for expenditure for the purposes designated 7 5 until the close of the succeeding fiscal year. 7 6 LSB 2815SV 82 7 7 ec:rj/je/5