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House Study Bill 635 - 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. “Economic development incentive” means a grant, loan, or
8performance-based incentive awarded by a government entity of
9this state. “Economic development incentive” does not include a
10tax credit or tax incentive program.
113. “Employ” means hiring or continuing to employ an
12individual to perform services.
134. “Employee” means an individual who provides services
14or labor for an employer in this state for wages or other
15remuneration. “Employee” does not include an independent
16contractor.
175. “Employer” means a person, as defined in chapter 4, that
18transacts business in this state, that has a license issued by
19an agency in this state, and that employs one or more employees
20in this state. “Employer” includes this state, a political
21subdivision of this state, and a self-employed individual.
22In the case of an independent contractor, “employer” means
23the independent contractor and does not mean the person or
24organization that uses the contract labor.
256. “E-verify program” means the employment verification
26program as jointly administered by the United States department
27of homeland security and the United States social security
28administration or any successor program.
297. “Government entity” means this state or a political
30subdivision of this state that receives and uses tax revenues.
318. a. “Independent contractor” means a person that carries
32on an independent business, that contracts to do a piece of
33work according to the person’s own means and methods and that
34is subject to control only as to results. Whether a person is
35an independent contractor is determined on a case-by-case basis
-1-1through various factors, including whether the person does any
2of the following:
3(1) Supplies tools or materials.
4(2) Makes services available to the general public.
5(3) Works or may work for a number of clients at the same
6time.
7(4) Has an opportunity for profit or loss as a result of
8labor or service provided.
9(5) Invests in facilities for work.
10(6) Directs the order or sequence in which the work is
11completed.
12(7) Determines the hours when the work is completed.
13(8) “Knowingly employ an unauthorized alien” means the
14actions described in 8 U.S.C. §1324a, and shall be interpreted
15consistently with 8 U.S.C. §1324a and any applicable federal
16regulations.
17b. Independent contractor status includes an individual who
18performs services and is not an employee pursuant to section
193508 of the Internal Revenue Code.
209. “License” means a permit, certificate, approval,
21registration, charter, or similar form of authorization, other
22than a professional license, that is required by law and that
23is issued by an agency, allowing the licensee to do business
24in this state.
2510. “Social security number verification service” means
26the program administered by the United States social security
27administration or any successor program.
2811. “Unauthorized alien” means an alien who does not have
29the legal right or authorization under federal law to work in
30the United States as described in 8 U.S.C. §1324a(h)(3).
31 Sec. 2. NEW SECTION. 95.2 Knowingly employing unauthorized
32aliens.
331. Knowingly employing unauthorized aliens prohibited. An
34employer shall not knowingly employ an unauthorized alien. If
35an employer uses a contract, subcontract, or other independent
-2-1contractor agreement to obtain the labor of an alien in
2this state, and the employer knowingly contracts with an
3unauthorized alien or with a person who employs or contracts
4with an unauthorized alien to perform the labor, the employer
5violates this subsection.
62. Complaints.
7a. The attorney general shall prescribe a complaint form
8for a person to allege a violation of subsection 1. The
9complainant shall not be required to list the complainant’s
10social security number on the complaint form or to have the
11complaint form notarized. Complaints shall be submitted to the
12attorney general or a county attorney. A complaint that is
13submitted to a county attorney shall be submitted to the county
14attorney in the county in which the alleged unauthorized alien
15is or was employed by the employer. This subsection shall not
16be construed to prohibit the filing of anonymous complaints
17that are not submitted on a prescribed complaint form.
18b. On receipt of a complaint on a prescribed complaint form
19that an employer allegedly knowingly employs or employed an
20unauthorized alien, the attorney general or county attorney
21shall investigate whether the employer has violated subsection
221. If a complaint is received but is not submitted on a
23prescribed complaint form, the attorney general or county
24attorney may investigate whether the employer has violated
25subsection 1.
26c. The attorney general or county attorney shall not
27investigate complaints that are based solely on race, color,
28or national origin. The county sheriff or any other local law
29enforcement agency may assist in investigating a complaint and
30shall do so upon request by the attorney general or county
31attorney. When investigating a complaint, the attorney general
32or county attorney shall verify the work authorization of the
33alleged unauthorized alien with the federal government pursuant
34to 8 U.S.C. §1373(c). A state, county, or local official shall
35not attempt to independently make a final determination on
-3-1whether an alien is authorized to work in the United States.
2d. A person who knowingly files a false or frivolous
3complaint under this subsection is guilty of a simple
4misdemeanor.
53. Required notifications.
6a. If, after an investigation, the attorney general or
7county attorney determines that the complaint is not false and
8not frivolous, the attorney general or county attorney shall
9notify the following entities of the unauthorized alien:
10(1) The United States immigration and customs enforcement.
11(2) The local law enforcement agency.
12b. The attorney general shall notify the appropriate county
13attorney to bring an action pursuant to subsection 4 if the
14complaint was originally filed with the attorney general.
154. Court action required. An action for a violation of
16subsection 1 shall be brought against the employer by the
17county attorney in the district court of the county where the
18unauthorized alien employee is or was employed by the employer.
19The district court shall expedite the action, including
20assigning a hearing at the earliest practicable date.
215. Court order — first violation. On a finding of a first
22violation as described in subsection 7, the court shall require
23by order all of the following:
24a. The employer shall terminate the employment of all
25unauthorized aliens.
26b. (1) The employer shall be subject to a three-year
27probationary period for the business location where the
28unauthorized alien performed work.
29(2) During the probationary period, the employer shall file
30quarterly reports on the form prescribed in section 252G.3 with
31the county attorney for each new employee who is hired by the
32employer at the business location where the unauthorized alien
33performed work.
34c. The employer shall be required to file a signed sworn
35affidavit with the county attorney within three business days
-4-1after the order is issued. The affidavit shall state that the
2employer has terminated the employment of all unauthorized
3aliens in this state and that the employer will not knowingly
4employ an unauthorized alien in this state.
5(1) The court shall order the appropriate agencies to
6suspend all licenses that are held by the employer if the
7employer fails to file a signed sworn affidavit with the county
8attorney within three business days after the order is issued.
9All licenses that are suspended shall remain suspended until
10the employer files a signed sworn affidavit with the county
11attorney. Upon filing of the affidavit, the suspended licenses
12shall be reinstated immediately by the appropriate agencies.
13(2) Licenses that are subject to suspension under this
14paragraph “c” are all licenses that are held by the employer
15specific to the business location where the unauthorized alien
16performed work. If the employer does not hold a license
17specific to the business location where the unauthorized alien
18performed work, but a license is necessary to operate the
19employer’s business in general, the licenses that are subject
20to suspension under this paragraph “c” are all licenses that
21are held by the employer at the employer’s primary place of
22business. On receipt of the court’s order, the appropriate
23agencies shall suspend the licenses according to the court’s
24order. The court shall send a copy of the court’s order to the
25attorney general and the attorney general shall maintain the
26copy pursuant to subsection 8.
27(3) The court may order the appropriate agencies to suspend
28all licenses described in this paragraph “c” that are held by
29the employer for not more than ten business days. The court
30shall base its decision to suspend under this subparagraph
31on any evidence or information submitted to it during the
32action for a violation of subsection 1 and shall consider the
33following factors, if relevant:
34(a) The number of unauthorized aliens employed by the
35employer.
-5- 1(b) Any prior misconduct by the employer.
2(c) The degree of harm resulting from the violation.
3(d) Whether the employer made good faith efforts to comply
4with any applicable requirements.
5(e) The duration of the violation.
6(f) The role of the directors, officers, or principals of
7the employer in the violation.
8(g) Any other factors the court deems appropriate.
96. Court order — second violation. For a second violation,
10as described in subsection 7, the court shall order the
11appropriate agencies to permanently revoke all licenses that
12are held by the employer specific to the business location
13where the unauthorized alien performed work. If the employer
14does not hold a license specific to the business location
15where the unauthorized alien performed work, but a license
16is necessary to operate the employer’s business in general,
17the court shall order the appropriate agencies to permanently
18revoke all licenses that are held by the employer at the
19employer’s primary place of business. On receipt of the order,
20the appropriate agencies shall immediately revoke the licenses.
217. Violations defined.
22a. A violation shall be considered a first violation by
23an employer at a business location if the violation did not
24occur during a probationary period ordered by the court under
25subsection 5, paragraph “b”, for that employer’s business
26location.
27b. A violation shall be considered a second violation by
28an employer at a business location if the violation occurred
29during a probationary period ordered by the court under
30subsection 5, paragraph “b”, for that employer’s business
31location.
328. Attorney general database. The attorney general shall
33maintain copies of court orders that are received pursuant to
34subsection 5, paragraph “c”, and shall maintain a database of
35the employers and business locations found to have committed
-6-1a first violation of subsection 1 and make the court orders
2available on the attorney general’s internet site.
39. Federal determination governs. In determining whether
4an employee is an unauthorized alien, the court shall consider
5only the federal government’s determination pursuant to 8
6U.S.C. §1373(c). The federal government’s determination
7creates a rebuttable presumption of the employee’s lawful
8status. The court may take judicial notice of the federal
9government’s determination and may request the federal
10government to provide automated or testimonial verification
11pursuant to 8 U.S.C. §1373(c).
1210. E-verify rebuttable presumption. For the purposes of
13this section, proof of verifying the employment authorization
14of an employee through the e-verify program creates a
15rebuttable presumption that an employer did not knowingly
16employ an unauthorized alien.
1711. Good-faith compliance. For the purposes of this
18section, an employer that establishes that it has complied
19in good faith with the requirements of 8 U.S.C. §1324a(b)
20establishes an affirmative defense that the employer did
21not knowingly employ an unauthorized alien. An employer is
22considered to have complied with the requirements of 8 U.S.C.
23§1324a(b), notwithstanding an isolated, sporadic, or accidental
24technical or procedural failure to meet the requirements, if
25there is a good-faith attempt to comply with the requirements.
2612. Entrapment as affirmative defense.
27a. It is an affirmative defense to a violation of subsection
281 that the employer was entrapped. To claim entrapment, the
29employer must admit by the employer’s testimony or other
30evidence the substantial elements of the violation. An
31employer who asserts an entrapment defense has the burden
32of proving all of the following by a preponderance of the
33evidence:
34(1) The idea of committing the violation started with law
35enforcement officers or their agents rather than with the
-7-1employer.
2(2) The law enforcement officers or their agents urged and
3induced the employer to commit the violation.
4(3) The employer was not predisposed to commit the violation
5before the law enforcement officers or their agents urged and
6induced the employer to commit the violation.
7b. An employer does not establish entrapment if the employer
8was predisposed to violate subsection 1 and the law enforcement
9officers or their agents merely provided the employer with an
10opportunity to commit the violation. It is not entrapment for
11law enforcement officers or their agents merely to use a ruse
12or to conceal their identity. The conduct of law enforcement
13officers and their agents may be considered in determining if
14an employer has proven entrapment.
15 Sec. 3. NEW SECTION. 95.3 E-verify program — employer
16participation.
171. An employer, after hiring an employee, shall verify the
18employment eligibility of the employee through the e-verify
19program and shall keep a record of the verification for the
20duration of the employee’s employment or at least three years,
21whichever is longer.
222. In addition to any other requirement for an employer to
23receive an economic development incentive from a government
24entity, the employer shall register with and participate
25in the e-verify program. Before receiving the economic
26development incentive, the employer shall provide proof to the
27government entity that the employer is registered with and
28is participating in the e-verify program. If the government
29entity determines that the employer is not complying with this
30subsection, the government entity shall notify the employer
31by certified mail of the government entity’s determination
32of noncompliance and the employer’s right to appeal the
33determination. On a final determination of noncompliance,
34the employer shall repay all moneys received as an economic
35development incentive to the government entity within thirty
-8-1days of the final determination.
23. Every three months, the attorney general shall request
3from the United States department of homeland security a list
4of employers from this state that are registered with the
5e-verify program. On receipt of the list of employers, the
6attorney general shall make the list available on the attorney
7general’s internet site.
8 Sec. 4. NEW SECTION. 95.4 Compliance with federal and state
9law.
10This chapter shall not be construed to require an employer to
11take any action that the employer believes in good faith would
12violate federal or state law.
13 Sec. 5. IMPLEMENTATION OF ACT. Section 25B.2, subsection
143, shall not apply to this Act.
15EXPLANATION
16The inclusion of this explanation does not constitute agreement with
17the explanation’s substance by the members of the general assembly.
18This bill prohibits employers from knowingly employing
19unauthorized aliens. The bill directs the attorney general
20to prescribe a complaint form for alleged violations of
21the prohibition. The bill provides that complaints may be
22submitted to the attorney general or the county attorney in
23the county in which the alleged unauthorized alien is or was
24employed by the employer. The bill directs the attorney
25general or county attorney to investigate complaints they
26receive, and to verify the work authorization of an alleged
27unauthorized alien with the federal government. The bill
28prohibits the attorney general or county attorney from
29investigating complaints that are based solely on race, color,
30or national origin. The bill allows a county sheriff or
31other local law enforcement to assist in an investigation and
32requires such assistance upon request by the attorney general
33or county attorney. The bill provides that a person who
34knowingly files a false or frivolous complaint is guilty of a
35simple misdemeanor, which is punishable by confinement for no
-9-1more than 30 days or a fine of at least $105 but not more than
2$855 or by both.
3The bill requires the attorney general or county attorney
4to notify United States immigration and customs enforcement,
5the local law enforcement agency, and, if the attorney general
6is the one investigating, the county attorney of a complaint
7that is not false and not frivolous. The bill requires the
8county attorney to bring an action in district court against an
9employer for a violation in the county where the unauthorized
10alien employee is or was employed by the employer. The bill
11provides that such an action must be expedited by the court.
12The bill provides that for a first violation, the court
13must order the employer to terminate the employment of all
14unauthorized aliens and to submit a signed sworn affidavit
15to that effect or face suspension of business licenses by
16appropriate agencies. The court will also order a three-year
17probationary period for the employer. The court may also
18order the suspension of the employer’s business licenses
19by appropriate agencies for up to 10 business days, after
20considering certain factors. The bill provides that for a
21second violation, defined as a violation occurring during a
22probationary period for a previous violation, the court must
23order the permanent revocation of the employer’s business
24licenses. The bill directs the attorney general to maintain an
25online database of first-time offenders.
26The bill provides that the district court can only consider
27a determination by the federal government in determining the
28immigration status of an alleged unauthorized alien employed
29by an employer. The bill provides that a determination
30of lawful status by the federal government will create a
31rebuttable presumption of the employee’s lawful status, as
32well as a rebuttable presumption that an employer did not
33knowingly employ an unauthorized alien. The bill provides
34that an employer who establishes that the employer complied in
35good faith with 8 U.S.C. §1324a(b) establishes an affirmative
-10-1defense that the employer did not knowingly employ an
2unauthorized alien. The bill provides that an employer is
3considered to have complied with the requirements of 8 U.S.C.
4§1324a(b), notwithstanding an isolated, sporadic, or accidental
5technical or procedural failure to meet the requirements, if
6there is a good-faith attempt to comply with the requirements.
7The bill provides an employer with an affirmative defense of
8entrapment if certain elements are met.
9The bill requires an employer hiring a new employee to
10verify the employee’s employment eligibility through the
11federal e-verify program. The bill requires the employer
12to keep records of the verification for the duration of the
13employee’s employment or three years, whichever is longer. The
14bill requires an employer receiving an economic development
15incentive from a state government entity to register with the
16federal e-verify program. The bill provides that an employer
17who does not comply with the requirement must repay all moneys
18received for the economic development incentive. The bill
19provides an employer the right to appeal a determination of
20noncompliance, and does not require repayment until a final
21determination of noncompliance is made. The bill directs the
22attorney general to request from the United States department
23of homeland security a list of employers registered with the
24e-verify program every three months. The bill directs the
25attorney general to make the list available on the attorney
26general’s internet site.
27The bill provides that the bill shall not be construed
28to require an employer to take any action that the employer
29believes in good faith would violate federal or state law.
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
-11-1mandate included in the bill.
-12-dg/rn
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. “Economic development incentive” means a grant, loan, or
8performance-based incentive awarded by a government entity of
9this state. “Economic development incentive” does not include a
10tax credit or tax incentive program.
113. “Employ” means hiring or continuing to employ an
12individual to perform services.
134. “Employee” means an individual who provides services
14or labor for an employer in this state for wages or other
15remuneration. “Employee” does not include an independent
16contractor.
175. “Employer” means a person, as defined in chapter 4, that
18transacts business in this state, that has a license issued by
19an agency in this state, and that employs one or more employees
20in this state. “Employer” includes this state, a political
21subdivision of this state, and a self-employed individual.
22In the case of an independent contractor, “employer” means
23the independent contractor and does not mean the person or
24organization that uses the contract labor.
256. “E-verify program” means the employment verification
26program as jointly administered by the United States department
27of homeland security and the United States social security
28administration or any successor program.
297. “Government entity” means this state or a political
30subdivision of this state that receives and uses tax revenues.
318. a. “Independent contractor” means a person that carries
32on an independent business, that contracts to do a piece of
33work according to the person’s own means and methods and that
34is subject to control only as to results. Whether a person is
35an independent contractor is determined on a case-by-case basis
-1-1through various factors, including whether the person does any
2of the following:
3(1) Supplies tools or materials.
4(2) Makes services available to the general public.
5(3) Works or may work for a number of clients at the same
6time.
7(4) Has an opportunity for profit or loss as a result of
8labor or service provided.
9(5) Invests in facilities for work.
10(6) Directs the order or sequence in which the work is
11completed.
12(7) Determines the hours when the work is completed.
13(8) “Knowingly employ an unauthorized alien” means the
14actions described in 8 U.S.C. §1324a, and shall be interpreted
15consistently with 8 U.S.C. §1324a and any applicable federal
16regulations.
17b. Independent contractor status includes an individual who
18performs services and is not an employee pursuant to section
193508 of the Internal Revenue Code.
209. “License” means a permit, certificate, approval,
21registration, charter, or similar form of authorization, other
22than a professional license, that is required by law and that
23is issued by an agency, allowing the licensee to do business
24in this state.
2510. “Social security number verification service” means
26the program administered by the United States social security
27administration or any successor program.
2811. “Unauthorized alien” means an alien who does not have
29the legal right or authorization under federal law to work in
30the United States as described in 8 U.S.C. §1324a(h)(3).
31 Sec. 2. NEW SECTION. 95.2 Knowingly employing unauthorized
32aliens.
331. Knowingly employing unauthorized aliens prohibited. An
34employer shall not knowingly employ an unauthorized alien. If
35an employer uses a contract, subcontract, or other independent
-2-1contractor agreement to obtain the labor of an alien in
2this state, and the employer knowingly contracts with an
3unauthorized alien or with a person who employs or contracts
4with an unauthorized alien to perform the labor, the employer
5violates this subsection.
62. Complaints.
7a. The attorney general shall prescribe a complaint form
8for a person to allege a violation of subsection 1. The
9complainant shall not be required to list the complainant’s
10social security number on the complaint form or to have the
11complaint form notarized. Complaints shall be submitted to the
12attorney general or a county attorney. A complaint that is
13submitted to a county attorney shall be submitted to the county
14attorney in the county in which the alleged unauthorized alien
15is or was employed by the employer. This subsection shall not
16be construed to prohibit the filing of anonymous complaints
17that are not submitted on a prescribed complaint form.
18b. On receipt of a complaint on a prescribed complaint form
19that an employer allegedly knowingly employs or employed an
20unauthorized alien, the attorney general or county attorney
21shall investigate whether the employer has violated subsection
221. If a complaint is received but is not submitted on a
23prescribed complaint form, the attorney general or county
24attorney may investigate whether the employer has violated
25subsection 1.
26c. The attorney general or county attorney shall not
27investigate complaints that are based solely on race, color,
28or national origin. The county sheriff or any other local law
29enforcement agency may assist in investigating a complaint and
30shall do so upon request by the attorney general or county
31attorney. When investigating a complaint, the attorney general
32or county attorney shall verify the work authorization of the
33alleged unauthorized alien with the federal government pursuant
34to 8 U.S.C. §1373(c). A state, county, or local official shall
35not attempt to independently make a final determination on
-3-1whether an alien is authorized to work in the United States.
2d. A person who knowingly files a false or frivolous
3complaint under this subsection is guilty of a simple
4misdemeanor.
53. Required notifications.
6a. If, after an investigation, the attorney general or
7county attorney determines that the complaint is not false and
8not frivolous, the attorney general or county attorney shall
9notify the following entities of the unauthorized alien:
10(1) The United States immigration and customs enforcement.
11(2) The local law enforcement agency.
12b. The attorney general shall notify the appropriate county
13attorney to bring an action pursuant to subsection 4 if the
14complaint was originally filed with the attorney general.
154. Court action required. An action for a violation of
16subsection 1 shall be brought against the employer by the
17county attorney in the district court of the county where the
18unauthorized alien employee is or was employed by the employer.
19The district court shall expedite the action, including
20assigning a hearing at the earliest practicable date.
215. Court order — first violation. On a finding of a first
22violation as described in subsection 7, the court shall require
23by order all of the following:
24a. The employer shall terminate the employment of all
25unauthorized aliens.
26b. (1) The employer shall be subject to a three-year
27probationary period for the business location where the
28unauthorized alien performed work.
29(2) During the probationary period, the employer shall file
30quarterly reports on the form prescribed in section 252G.3 with
31the county attorney for each new employee who is hired by the
32employer at the business location where the unauthorized alien
33performed work.
34c. The employer shall be required to file a signed sworn
35affidavit with the county attorney within three business days
-4-1after the order is issued. The affidavit shall state that the
2employer has terminated the employment of all unauthorized
3aliens in this state and that the employer will not knowingly
4employ an unauthorized alien in this state.
5(1) The court shall order the appropriate agencies to
6suspend all licenses that are held by the employer if the
7employer fails to file a signed sworn affidavit with the county
8attorney within three business days after the order is issued.
9All licenses that are suspended shall remain suspended until
10the employer files a signed sworn affidavit with the county
11attorney. Upon filing of the affidavit, the suspended licenses
12shall be reinstated immediately by the appropriate agencies.
13(2) Licenses that are subject to suspension under this
14paragraph “c” are all licenses that are held by the employer
15specific to the business location where the unauthorized alien
16performed work. If the employer does not hold a license
17specific to the business location where the unauthorized alien
18performed work, but a license is necessary to operate the
19employer’s business in general, the licenses that are subject
20to suspension under this paragraph “c” are all licenses that
21are held by the employer at the employer’s primary place of
22business. On receipt of the court’s order, the appropriate
23agencies shall suspend the licenses according to the court’s
24order. The court shall send a copy of the court’s order to the
25attorney general and the attorney general shall maintain the
26copy pursuant to subsection 8.
27(3) The court may order the appropriate agencies to suspend
28all licenses described in this paragraph “c” that are held by
29the employer for not more than ten business days. The court
30shall base its decision to suspend under this subparagraph
31on any evidence or information submitted to it during the
32action for a violation of subsection 1 and shall consider the
33following factors, if relevant:
34(a) The number of unauthorized aliens employed by the
35employer.
-5- 1(b) Any prior misconduct by the employer.
2(c) The degree of harm resulting from the violation.
3(d) Whether the employer made good faith efforts to comply
4with any applicable requirements.
5(e) The duration of the violation.
6(f) The role of the directors, officers, or principals of
7the employer in the violation.
8(g) Any other factors the court deems appropriate.
96. Court order — second violation. For a second violation,
10as described in subsection 7, the court shall order the
11appropriate agencies to permanently revoke all licenses that
12are held by the employer specific to the business location
13where the unauthorized alien performed work. If the employer
14does not hold a license specific to the business location
15where the unauthorized alien performed work, but a license
16is necessary to operate the employer’s business in general,
17the court shall order the appropriate agencies to permanently
18revoke all licenses that are held by the employer at the
19employer’s primary place of business. On receipt of the order,
20the appropriate agencies shall immediately revoke the licenses.
217. Violations defined.
22a. A violation shall be considered a first violation by
23an employer at a business location if the violation did not
24occur during a probationary period ordered by the court under
25subsection 5, paragraph “b”, for that employer’s business
26location.
27b. A violation shall be considered a second violation by
28an employer at a business location if the violation occurred
29during a probationary period ordered by the court under
30subsection 5, paragraph “b”, for that employer’s business
31location.
328. Attorney general database. The attorney general shall
33maintain copies of court orders that are received pursuant to
34subsection 5, paragraph “c”, and shall maintain a database of
35the employers and business locations found to have committed
-6-1a first violation of subsection 1 and make the court orders
2available on the attorney general’s internet site.
39. Federal determination governs. In determining whether
4an employee is an unauthorized alien, the court shall consider
5only the federal government’s determination pursuant to 8
6U.S.C. §1373(c). The federal government’s determination
7creates a rebuttable presumption of the employee’s lawful
8status. The court may take judicial notice of the federal
9government’s determination and may request the federal
10government to provide automated or testimonial verification
11pursuant to 8 U.S.C. §1373(c).
1210. E-verify rebuttable presumption. For the purposes of
13this section, proof of verifying the employment authorization
14of an employee through the e-verify program creates a
15rebuttable presumption that an employer did not knowingly
16employ an unauthorized alien.
1711. Good-faith compliance. For the purposes of this
18section, an employer that establishes that it has complied
19in good faith with the requirements of 8 U.S.C. §1324a(b)
20establishes an affirmative defense that the employer did
21not knowingly employ an unauthorized alien. An employer is
22considered to have complied with the requirements of 8 U.S.C.
23§1324a(b), notwithstanding an isolated, sporadic, or accidental
24technical or procedural failure to meet the requirements, if
25there is a good-faith attempt to comply with the requirements.
2612. Entrapment as affirmative defense.
27a. It is an affirmative defense to a violation of subsection
281 that the employer was entrapped. To claim entrapment, the
29employer must admit by the employer’s testimony or other
30evidence the substantial elements of the violation. An
31employer who asserts an entrapment defense has the burden
32of proving all of the following by a preponderance of the
33evidence:
34(1) The idea of committing the violation started with law
35enforcement officers or their agents rather than with the
-7-1employer.
2(2) The law enforcement officers or their agents urged and
3induced the employer to commit the violation.
4(3) The employer was not predisposed to commit the violation
5before the law enforcement officers or their agents urged and
6induced the employer to commit the violation.
7b. An employer does not establish entrapment if the employer
8was predisposed to violate subsection 1 and the law enforcement
9officers or their agents merely provided the employer with an
10opportunity to commit the violation. It is not entrapment for
11law enforcement officers or their agents merely to use a ruse
12or to conceal their identity. The conduct of law enforcement
13officers and their agents may be considered in determining if
14an employer has proven entrapment.
15 Sec. 3. NEW SECTION. 95.3 E-verify program — employer
16participation.
171. An employer, after hiring an employee, shall verify the
18employment eligibility of the employee through the e-verify
19program and shall keep a record of the verification for the
20duration of the employee’s employment or at least three years,
21whichever is longer.
222. In addition to any other requirement for an employer to
23receive an economic development incentive from a government
24entity, the employer shall register with and participate
25in the e-verify program. Before receiving the economic
26development incentive, the employer shall provide proof to the
27government entity that the employer is registered with and
28is participating in the e-verify program. If the government
29entity determines that the employer is not complying with this
30subsection, the government entity shall notify the employer
31by certified mail of the government entity’s determination
32of noncompliance and the employer’s right to appeal the
33determination. On a final determination of noncompliance,
34the employer shall repay all moneys received as an economic
35development incentive to the government entity within thirty
-8-1days of the final determination.
23. Every three months, the attorney general shall request
3from the United States department of homeland security a list
4of employers from this state that are registered with the
5e-verify program. On receipt of the list of employers, the
6attorney general shall make the list available on the attorney
7general’s internet site.
8 Sec. 4. NEW SECTION. 95.4 Compliance with federal and state
9law.
10This chapter shall not be construed to require an employer to
11take any action that the employer believes in good faith would
12violate federal or state law.
13 Sec. 5. IMPLEMENTATION OF ACT. Section 25B.2, subsection
143, shall not apply to this Act.
15EXPLANATION
16The inclusion of this explanation does not constitute agreement with
17the explanation’s substance by the members of the general assembly.
18This bill prohibits employers from knowingly employing
19unauthorized aliens. The bill directs the attorney general
20to prescribe a complaint form for alleged violations of
21the prohibition. The bill provides that complaints may be
22submitted to the attorney general or the county attorney in
23the county in which the alleged unauthorized alien is or was
24employed by the employer. The bill directs the attorney
25general or county attorney to investigate complaints they
26receive, and to verify the work authorization of an alleged
27unauthorized alien with the federal government. The bill
28prohibits the attorney general or county attorney from
29investigating complaints that are based solely on race, color,
30or national origin. The bill allows a county sheriff or
31other local law enforcement to assist in an investigation and
32requires such assistance upon request by the attorney general
33or county attorney. The bill provides that a person who
34knowingly files a false or frivolous complaint is guilty of a
35simple misdemeanor, which is punishable by confinement for no
-9-1more than 30 days or a fine of at least $105 but not more than
2$855 or by both.
3The bill requires the attorney general or county attorney
4to notify United States immigration and customs enforcement,
5the local law enforcement agency, and, if the attorney general
6is the one investigating, the county attorney of a complaint
7that is not false and not frivolous. The bill requires the
8county attorney to bring an action in district court against an
9employer for a violation in the county where the unauthorized
10alien employee is or was employed by the employer. The bill
11provides that such an action must be expedited by the court.
12The bill provides that for a first violation, the court
13must order the employer to terminate the employment of all
14unauthorized aliens and to submit a signed sworn affidavit
15to that effect or face suspension of business licenses by
16appropriate agencies. The court will also order a three-year
17probationary period for the employer. The court may also
18order the suspension of the employer’s business licenses
19by appropriate agencies for up to 10 business days, after
20considering certain factors. The bill provides that for a
21second violation, defined as a violation occurring during a
22probationary period for a previous violation, the court must
23order the permanent revocation of the employer’s business
24licenses. The bill directs the attorney general to maintain an
25online database of first-time offenders.
26The bill provides that the district court can only consider
27a determination by the federal government in determining the
28immigration status of an alleged unauthorized alien employed
29by an employer. The bill provides that a determination
30of lawful status by the federal government will create a
31rebuttable presumption of the employee’s lawful status, as
32well as a rebuttable presumption that an employer did not
33knowingly employ an unauthorized alien. The bill provides
34that an employer who establishes that the employer complied in
35good faith with 8 U.S.C. §1324a(b) establishes an affirmative
-10-1defense that the employer did not knowingly employ an
2unauthorized alien. The bill provides that an employer is
3considered to have complied with the requirements of 8 U.S.C.
4§1324a(b), notwithstanding an isolated, sporadic, or accidental
5technical or procedural failure to meet the requirements, if
6there is a good-faith attempt to comply with the requirements.
7The bill provides an employer with an affirmative defense of
8entrapment if certain elements are met.
9The bill requires an employer hiring a new employee to
10verify the employee’s employment eligibility through the
11federal e-verify program. The bill requires the employer
12to keep records of the verification for the duration of the
13employee’s employment or three years, whichever is longer. The
14bill requires an employer receiving an economic development
15incentive from a state government entity to register with the
16federal e-verify program. The bill provides that an employer
17who does not comply with the requirement must repay all moneys
18received for the economic development incentive. The bill
19provides an employer the right to appeal a determination of
20noncompliance, and does not require repayment until a final
21determination of noncompliance is made. The bill directs the
22attorney general to request from the United States department
23of homeland security a list of employers registered with the
24e-verify program every three months. The bill directs the
25attorney general to make the list available on the attorney
26general’s internet site.
27The bill provides that the bill shall not be construed
28to require an employer to take any action that the employer
29believes in good faith would violate federal or state law.
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
-11-1mandate included in the bill.
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