Senate File 84 - IntroducedA Bill ForAn Act 1relating to the employment of unauthorized aliens and
2providing penalties.
3BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1   Section 1.  NEW SECTION.  95.1  Definitions.
   2As used in this chapter, unless the context otherwise
3requires:
   41.  “Agency” means an agency, department, board, or
5commission of this state or a political subdivision that issues
6a license for purposes of operating a business in this state.
   72.  “Department” means the department of workforce
8development.
   93.  “Economic development incentive” means a grant, loan, or
10performance-based incentive awarded by a government entity of
11this state. “Economic development incentive” does not include a
12tax credit or tax incentive program.
   134.  “Employ” means hiring or continuing to employ an
14individual to perform services.
   155.  “Employee” means an individual who is paid wages by an
16employer for service in employment in this state. “Employee”
17does not include an independent contractor.
   186.  “Employer” means an employer, as defined in section
1996.1A, that has a license issued by an agency in this state.
20In the case of an independent contractor, “employer” means
21the independent contractor and does not mean the person or
22organization that uses the contract labor.
   237.  “Employment” means the same as defined in section 96.1A.
   248.  “E-verify program” means the employment verification
25program as jointly administered by the United States department
26of homeland security and the United States social security
27administration or any successor program.
   289.  “Government entity” means this state or a political
29subdivision of this state that receives and uses tax revenues.
   3010.  “Independent contractor” means the same as described in
31rules adopted by the department for purposes of administration
32of chapter 96.
   3311.  “Knowingly employ an unauthorized alien” means the
34actions described in 8 U.S.C. §1324a, and shall be interpreted
35consistently with 8 U.S.C. §1324a and any applicable federal
-1-1regulations.
   212.  “License” means a permit, certificate, approval,
3registration, charter, or similar form of authorization, other
4than a professional license, that is required by law and that
5is issued by an agency, allowing the licensee to do business
6in this state.
   713.  “Unauthorized alien” means an alien who does not have
8the legal right or authorization under federal law to work in
9the United States as described in 8 U.S.C. §1324a(h)(3).
   1014.  “Wages” means the same as defined in section 96.1A.
11   Sec. 2.  NEW SECTION.  95.2  Knowingly employing unauthorized
12aliens.
   131.  Knowingly employing unauthorized aliens prohibited.  An
14employer shall not knowingly employ an unauthorized alien. If
15an employer uses a contract, subcontract, or other independent
16contractor agreement to obtain the labor of an alien in
17this state, and the employer knowingly contracts with an
18unauthorized alien or with a person who employs or contracts
19with an unauthorized alien to perform the labor, the employer
20violates this subsection.
   212.  Complaints — court action required.  A county attorney,
22local law enforcement official, or member of the public may
23file a complaint of a violation of subsection 1 with the
24department. If the department determines, based on evidence
25included with the complaint or on evidence gathered by the
26department, that an employer has violated subsection 1, the
27department shall bring an action against the employer in the
28district court of the county where the unauthorized alien
29employee is or was employed by the employer. The district
30court shall expedite the action, including scheduling a hearing
31at the earliest practicable date.
   323.  Court order — first violation.  On a finding of a first
33violation as described in subsection 5, the court shall require
34by order all of the following:
   35a.  The employer shall terminate the employment of all
-2-1unauthorized aliens.
   2b.  (1)  The employer shall be subject to a three-year
3probationary period for the business location where the
4unauthorized alien performed work.
   5(2)  During the probationary period, the employer shall file
6quarterly reports on the form prescribed in section 252G.3
7with the department for each new employee who is hired by the
8employer at the business location where the unauthorized alien
9performed work.
   10c.  The employer shall be required to file a signed sworn
11affidavit with the department within three business days after
12the order is issued. The affidavit shall state that the
13employer has terminated the employment of all unauthorized
14aliens in this state and that the employer will not knowingly
15employ an unauthorized alien in this state.
   16(1)  The court shall order the appropriate agencies to
17suspend all licenses that are held by the employer if the
18employer fails to file a signed sworn affidavit with the
19department within three business days after the order is
20issued. All licenses that are suspended shall remain suspended
21until the employer files a signed sworn affidavit with the
22department. Upon filing of the affidavit, the suspended
23licenses shall be reinstated immediately by the appropriate
24agencies.
   25(2)  Licenses that are subject to suspension under this
26paragraph “c” are all licenses that are held by the employer
27specific to the business location where the unauthorized alien
28performed work. If the employer does not hold a license
29specific to the business location where the unauthorized alien
30performed work, but a license is necessary to operate the
31employer’s business in general, the licenses that are subject
32to suspension under this paragraph “c” are all licenses that
33are held by the employer at the employer’s primary place of
34business. On receipt of the court’s order, the appropriate
35agencies shall suspend the licenses according to the court’s
-3-1order. The court shall send a copy of the court’s order to the
2secretary of state and the secretary of state shall maintain
3the copy pursuant to subsection 6.
   4(3)  The court may order the appropriate agencies to suspend
5all licenses described in this paragraph “c” that are held by
6the employer for not more than ten business days. The court
7shall base its decision to suspend under this subparagraph
8on any evidence or information submitted to it during the
9action for a violation of subsection 1 and shall consider the
10following factors, if relevant:
   11(a)  The number of unauthorized aliens employed by the
12employer.
   13(b)  Any prior misconduct by the employer.
   14(c)  The degree of harm resulting from the violation.
   15(d)  Whether the employer made good-faith efforts to comply
16with any applicable requirements.
   17(e)  The duration of the violation.
   18(f)  The role of the directors, officers, or principals of
19the employer in the violation.
   20(g)  Any other factors the court deems appropriate.
   214.  Court order — second violation.  For a second violation,
22as described in subsection 5, the court shall order the
23appropriate agencies to permanently revoke all licenses that
24are held by the employer specific to the business location
25where the unauthorized alien performed work. If the employer
26does not hold a license specific to the business location
27where the unauthorized alien performed work, but a license
28is necessary to operate the employer’s business in general,
29the court shall order the appropriate agencies to permanently
30revoke all licenses that are held by the employer at the
31employer’s primary place of business. On receipt of the order,
32the appropriate agencies shall immediately revoke the licenses.
   335.  Violations defined.
   34a.  A violation shall be considered a first violation by
35an employer at a business location if the violation did not
-4-1occur during a probationary period ordered by the court under
2subsection 3, paragraph “b”, for that employer’s business
3location.
   4b.  A violation shall be considered a second violation by
5an employer at a business location if the violation occurred
6during a probationary period ordered by the court under
7subsection 3, paragraph “b”, for that employer’s business
8location.
   96.  Secretary of state database.  The secretary of state
10shall maintain copies of court orders that are received
11pursuant to subsection 3, paragraph “c”, and shall maintain a
12database of the employers and business locations found to have
13committed a first violation of subsection 1 and make the court
14orders available on the secretary of state’s internet site.
   157.  Federal determination creates rebuttable presumption.  In
16determining whether an employee is an unauthorized alien, the
17court shall consider the federal government’s determination
18of the immigration status of the employee pursuant to 8
19U.S.C. §1373(c). The court may take judicial notice of the
20federal government’s determination. The federal government’s
21determination that the employee is an unauthorized alien
22creates a rebuttable presumption of the employee’s unauthorized
23status. The employer may present evidence that the employee
24is not an unauthorized alien.
   258.  Good-faith compliance.  For the purposes of this section,
26an employer that establishes that it has complied in good
27faith with the requirements of 8 U.S.C. §1324a(b) establishes
28a conclusive affirmative defense that the employer did not
29knowingly employ an unauthorized alien. An employer is
30considered to have complied with the requirements of 8 U.S.C.
31§1324a(b), notwithstanding an isolated, sporadic, or accidental
32technical or procedural failure to meet the requirements, if
33there is a good-faith attempt to comply with the requirements.
34For purposes of this subsection, “good-faith attempt to comply”
35means an employer to which all of the following apply with
-5-1respect to an employee hired or rehired by the employer:
   2a.  The employer made a bona fide attempt to meet the
3requirements for completion of the form I-9 for the employee
4found in 8 C.F.R. §274a.2(a)(3), as amended through January 1,
52019.
   6b.  The employer was a participating employer in the e-verify
7program at the time the employee was hired or rehired.
   8c.  The employer can demonstrate that the employer attempted
9to verify the employment eligibility of the employee through
10the e-verify program.
   119.  Entrapment as affirmative defense.
   12a.  It is an affirmative defense to a violation of subsection
131 that the employer was entrapped. To claim entrapment, the
14employer must admit by the employer’s testimony or other
15evidence the substantial elements of the violation. An
16employer who asserts an entrapment defense has the burden
17of proving all of the following by a preponderance of the
18evidence:
   19(1)  The idea of committing the violation started with law
20enforcement officers or their agents rather than with the
21employer.
   22(2)  The law enforcement officers or their agents urged and
23induced the employer to commit the violation.
   24b.  An employer does not establish entrapment if the employer
25was predisposed to violate subsection 1 and the law enforcement
26officers or their agents merely provided the employer with
27an opportunity to commit the violation. The conduct of law
28enforcement officers and their agents may be considered in
29determining if an employer has proven entrapment.
30   Sec. 3.  NEW SECTION.  95.3  E-verify program — employer
31participation — economic development incentives from government
32entities.
   331.  An employer, after hiring or rehiring an employee, shall
34verify the employment eligibility of the employee through
35the e-verify program, shall certify to the department that
-6-1the employer has done so, and shall keep a record of the
2verification for the duration of the employee’s employment or
3at least three years, whichever is longer. The certification
4shall be considered a record under section 96.11, subsection
56, and rules adopted pursuant thereto, and shall be submitted
6to the department within the time period required by rule for
7an employer to submit the employer’s contribution and payroll
8report.
   92.  In addition to any other requirement for an employer to
10receive an economic development incentive from a government
11entity, the employer shall register with and participate
12in the e-verify program. Before receiving the economic
13development incentive, the employer shall provide proof to the
14government entity that the employer is registered with and
15is participating in the e-verify program. If the government
16entity determines that the employer is not complying with this
17subsection, the government entity shall notify the employer
18by certified mail of the government entity’s determination
19of noncompliance and the employer’s right to appeal the
20determination. On a final determination of noncompliance,
21the employer shall repay all moneys received as an economic
22development incentive to the government entity within thirty
23days of the final determination.
   243.  Every three months, the secretary of state shall request
25from the United States department of homeland security a
26list of employers from this state that are registered with
27the e-verify program. On receipt of the list of employers,
28the secretary of state shall make the list available on the
29secretary of state’s internet site.
30   Sec. 4.  NEW SECTION.  95.4  Compliance with federal and state
31law.
   32This chapter shall not be construed to require an employer to
33take any action that the employer believes in good faith would
34violate federal or state law.
35   Sec. 5.  NEW SECTION.  95.5  Rules.
-7-
   1The department shall adopt rules pursuant to chapter 17A to
2carry out the department’s duties under this chapter, including
3but not limited to processes for the filing of complaints,
4quarterly reports, and affidavits pursuant to section 95.2 and
5certifications pursuant to section 95.3 with the department.
6   Sec. 6.  NEW SECTION.  95.6  Use of federal funds by
7department prohibited.
   8The department shall not utilize federal funds, or personnel
9or any other department resources for which federal funding
10is allocated, to carry out the department’s duties under this
11chapter.
12   Sec. 7.  IMPLEMENTATION OF ACT.  Section 25B.2, subsection
133, shall not apply to this Act.
14EXPLANATION
15The inclusion of this explanation does not constitute agreement with
16the explanation’s substance by the members of the general assembly.
   17This bill prohibits employers from knowingly employing
18unauthorized aliens.
   19“Employer” is defined as the same as provided in Code chapter
2096 relating to unemployment insurance. “Unauthorized alien”
21is defined as an alien who does not have the legal right or
22authorization under federal law to work in the United States as
23described in 8 U.S.C. §1324a(h)(3).
   24The bill authorizes a county attorney, local law enforcement
25official, or member of the public to file a complaint of a
26violation with the department of workforce development. If
27the department determines, based on evidence included with
28the complaint or on evidence gathered by the department, that
29an employer has committed a violation, the bill requires the
30department to bring an action in district court against an
31employer for a violation in the county where the unauthorized
32alien employee is or was employed by the employer. The bill
33provides that such an action must be expedited by the court.
   34The bill provides that for a first violation, the court
35must order the employer to terminate the employment of all
-8-1unauthorized aliens and to submit a signed sworn affidavit
2to that effect or face suspension of business licenses by
3appropriate agencies. The court must also order a three-year
4probationary period for the employer. The court may also
5order the suspension of the employer’s business licenses
6by appropriate agencies for up to 10 business days, after
7considering certain specified factors. The bill provides that
8for a second violation, defined as a violation occurring during
9a probationary period for a previous violation, the court must
10order the permanent revocation of the employer’s business
11licenses. The bill directs the secretary of state to maintain
12an online database of first-time offenders.
   13In determining the immigration status of an alleged
14unauthorized alien employed by an employer, the bill requires
15the district court to consider the federal government’s
16determination of the immigration status of the employee. The
17federal government’s determination that the employee is an
18unauthorized alien creates a rebuttable presumption of the
19employee’s unauthorized status. The employer may present
20evidence that the employee is not an unauthorized alien.
21The bill provides that an employer who establishes that the
22employer complied in good faith with 8 U.S.C. §1324a(b),
23relating to verification of authorization for employment,
24establishes a conclusive affirmative defense that the employer
25did not knowingly employ an unauthorized alien. The bill
26provides that an employer is considered to have complied with
27the requirements of 8 U.S.C. §1324a(b), notwithstanding an
28isolated, sporadic, or accidental technical or procedural
29failure to meet the requirements, if there is a good-faith
30attempt to comply with the requirements as defined in the bill.
31The bill provides an employer with an affirmative defense of
32entrapment if certain elements are met.
   33The bill requires an employer hiring or rehiring an employee
34to verify the employee’s employment eligibility through the
35federal e-verify program and certify to the department of
-9-1workforce development that the employer has done so. The bill
2requires the employer to keep records of the verification
3for the duration of the employee’s employment or three
4years, whichever is longer, and establishes a time period
5for submission of certifications to the department. The
6bill requires an employer receiving an economic development
7incentive from a state government entity to register with the
8federal e-verify program. The bill provides that an employer
9who does not comply with the requirement must repay all moneys
10received for the economic development incentive. The bill
11provides an employer the right to appeal a determination of
12noncompliance and does not require repayment until a final
13determination of noncompliance is made. The bill directs the
14secretary of state to request from the United States department
15of homeland security a list of employers registered with the
16e-verify program every three months. The bill directs the
17secretary of state to make the list available on the secretary
18of state’s internet site.
   19The bill provides that the bill shall not be construed
20to require an employer to take any action that the employer
21believes in good faith would violate federal or state law.
   22The bill requires the department of workforce development
23to adopt rules to carry out the department’s duties under the
24bill, including but not limited to rules on certain specified
25subjects.
   26The bill prohibits the department of workforce development
27from utilizing federal funds, or personnel or any other
28department resources for which federal funding is allocated, to
29carry out the department’s duties under the bill.
   30The bill may include a state mandate as defined in Code
31section 25B.3. The bill makes inapplicable Code section 25B.2,
32subsection 3, which would relieve a political subdivision from
33complying with a state mandate if funding for the cost of
34the state mandate is not provided or specified. Therefore,
35political subdivisions are required to comply with any state
-10-1mandate included in the bill.
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