SB 656 — Verifying legal employment status of workers to governmental agencies

WEST VIRGINIA LEGISLATURE REGULAR SESSION IntroducedCommittee Substitute for Senate Bill 656 By Senators Woodrum, Stuart, and Jeffries [Introduced[Originating Februaryin 16,the 2023;Committee on Government Organization;

referredreported toon theFebruary Committee22, on2023] GovernmentCS Organization]for Intr SB 656 2023R3758 A BILL to amend and reenact §21-1B-2, §21-1B-3, and §21-1B-6 of the Code of West Virginia, 1931, as amended;

using E-VerifyE-Verify, the electronic verification of federal employment authorization program of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996;

1101,§ 1101 et.

"Employer" means any individual, person, corporation, department, board, bureau, agency, commission, division, office, company, firm, partnership, council or committee of the state government, public benefit corporation, public authority or political subdivision of the state or other business entity which employs or seeks to employ an individual or individuals and that registers with the secretarySecretary of state.State.

§1324a,§ 1324a, and operated by the United States Department of Homeland Intr1 CS for SB 656 2023R3758 Security, or its successor program.

§1324a.§ 1324a.

(2) A valid, unexpired West Virginia nondriver identification card.card (if applicable).

(If applicable) (3) A valid tribal enrollment card or other form of tribal identification bearing a photograph or other biometric identifier.

(5) A foreign passport with an unexpired United States Visa and a corresponding stamp or notation by the United States Department of Homeland Security indicating the bearer's admission Intr2 CS for SB 656 2023R3758 to the United States.

"Records" means records that may be required by the commissionerCommissioner of laborLabor for the purposes of compliance with the provisions of this article.

(a) It is unlawful for any employer to knowingly employ, hire, recruitrecruit, or refer, either for him or herself or on behalf of another, for private or public employment within the state, an unauthorized worker who is not duly authorized to be employed by law.

(b) Employers shall be required to verify a prospective an employee's legal status or authorization to work after prior to employing the individual or contracting with the individual for employment services.services but prior to three days after the employee’s first day of work for pay, unless the employee will work for fewer than three days;

(c)then Forverification purposesmust ofoccur thisno article,later proofthan of legal status or authorization to work includes, but is not limited to, a valid social security card, a valid immigration or nonimmigration visa, including photo identification, a valid birth certificate, a valid passport, a valid photo identification card issued by a government agency, a valid work permit or supervision permit authorized by the Divisionfirst ofday Labor, a valid permit issued by the Department of Justice or other valid document providing evidence of legal residence or authorization to work infor thepay. United States.

Intr(c) SBFor 656purposes 2023R3758of (d)this Forarticle, purposesproof of enforcinglegal thestatus provisionsor ofauthorization thisto article,work andincludes, notwithstandingbut anyis othernot provisionlimited ofto, thisa codevalid toSocial theSecurity contrary,card, thea commissionervalid immigration or hisnonimmigration orvisa, herincluding authorizedphoto representativeidentification, maya accessvalid informationbirth maintainedcertificate, bya anyvalid otherpassport, statea agency,valid including,photo butidentification notcard limitedissued to,by thea Bureaugovernment ofagency, Employmenta Programsvalid andwork permit or supervision permit authorized by the Division of Motor3 Vehicles,CS for theSB limited656 purposeLabor, ofa confirmingvalid permit issued by the validityDepartment of aJustice, worker'sor other valid document providing evidence of legal statusresidence or authorization to work.work in the United States.

(d) For purposes of enforcing the provisions of this article, and notwithstanding any other provision of this code to the contrary, the commissioner or his or her authorized representative may access information maintained by any other state agency, including, but not limited to, the Bureau of Employment Programs and the Division of Motor Vehicles, for the limited purpose of confirming the validity of a worker's legal status or authorization to work.

(e) As a condition for the award of any contract, grant, or incentive by this state, any political subdivision thereof, or any state-funded entity to a business entity or employer that employs one or more employees, the business entity or employer shall provide documentation establishing that the business entity or employer is enrolled in the E-Verify program.Program.

During the performance of the contract, the business entity or employer shall participate in the E-Verify programProgram and shall verify every employee that is required to be verified according to the applicable federal rules and regulations.

(f) No subcontractor on a project paid for by contract, grant, or incentive by this state, any political subdivision thereof, or any state-funded entity may knowingly employ, hire for employment, or continue to employ an unauthorized alien and shall also enroll in the E-Verify programProgram prior to performing any work on the project and shall verify every employee that is required to be verified according to the applicable federal rules and regulations.

(g) A contractor of any tier mayshall not be liable under this section when the contractor contracts with its direct subcontractor who violates this section, if the contractor receives a sworn affidavit from the subcontractor signed before a notary attesting to the fact that the direct subcontractor, in good faith, has complied with respect to verifying each of its employee's eligibility for employment, unless the contractor knows 4 CS for SB 656 the direct subcontractor is violating this section.

(h)(1) Upon the first violation of subsection (e) of this section by any business entity or Intr SB 656 2023R3758 employer awarded a contract by the state, any political subdivision thereof, or any state-funded entityentity, the business entity or employer shall be considered in breach of contract and the state, political subdivision thereof, or state-funded entity may terminate the contract after providing notice and an opportunity to be heard.

The court shall order the business entity or employer to file a signed, sworn affidavit with the localAttorney districtGeneral attorney within three days after the order is issued by the court stating that the business entity or employer has terminated the employment of every unauthorized alien and the business entity or employer will not knowingly or intentionally employ an unauthorized alien in this state.

(i)(1) Upon the first violation of subsection (e)(f) of this section by a subcontractor, the state or 5 CS for SB 656 political subdivision thereof may bar the subcontractor from doing business with the state, any political subdivision thereof, any state-funded entity, or with any contractor who contracts with the Intr SB 656 2023R3758 state, any political subdivision thereof, or any state-funded entity after providing notice and an opportunity to be heard.

Upon application by the state entity or political subdivision thereof, or state-funded entity, the Attorney General may bring an action to suspend the business licenses and permits of the subcontractor for a period not to exceed 60 days,days according to the procedures described in subsection (e)(h) of this section.

The court shall order the subcontractor to file a signed, sworn affidavit with the localAttorney districtGeneral attorney within three days after the order is issued by the court stating that the subcontractor has terminated the employment of every unauthorized alien and the subcontractor will not knowingly or intentionally employ an unauthorized alien in this state.

(2) Upon a second or subsequent violation of subsection (e)(f) of this section by a subcontractor and upon application by the state entity or political subdivision thereof, or state- funded entity, the Attorney General may bring an action to permanently suspend the business licenses of the business entity or employer according to the procedures described in subsection (e) of this section.

The determination of a violation shall be according to the procedures described in subsection (e)(h) of this section.

6 CS for SB 656 (k) The Secretary of State shall propose rules for legislative approval in accordance with §29A-3-1 et seq.

Intr SB 656 2023R3758 (l) Compliance with this section may be verified by the state authorities or law enforcement at any time to ensure a contractual agreement as provided for in this section is being met.

(m) The suspension of a business license or permit under subdivision 1 subsection (h)(1)(h) and (i)(1)subdivision 1 subsection (i)of this section shall terminate one business day after a legal representative of the business entity, employer, or subcontractor submits a signed, sworn affidavit stating that the business entity, employer, or subcontractor is in compliance with the provisions of this article and a copy of the Memorandum of Understanding issued at the time of enrollment in E-VerifyE- Verify to the court.

A business entity or employer that uses E-Verify to verify the work authorization of an employee shall not be deemedconsidered to have violated this section with respect to the employment of that employee.

(p) On a finding of a first violation by a court of competent jurisdiction that a business entity or employer knowingly violated subsection (e),(n), the court shall do all of the following:

During the probationary period, the business entity or employer shall file quarterly reports with the localAttorney districtGeneral attorney of each new employee who is hired by the business entity or 7 CS for SB 656 employer in the state.

(3) Order the business entity or employer to file a signed, sworn affidavit with the localAttorney districtGeneral attorney within three days after the order is issued by the court stating that the business Intr SB 656 2023R3758 entity or employer has terminated the employment of every unauthorized alien and the business entity or employer will not knowingly or intentionally employ an unauthorized alien in this state.

(4) Direct the applicable state, county, or municipal governing bodies to suspend theany business licenses and permits, if such exist, of the business entity or employer for a period not to exceed 10 business days specific to the business location where the unauthorized alien performed work.

(q)(1) Before a business license or permit that has been suspended under subsection (e)(p) is reinstated, a legal representative of the business entity or employer shall submit to the court a signed, sworn affidavit stating that the business entity or employer is in compliance with the provisions of this article and a copy of the Memorandum of Understanding issued to the business entity or employer at the time of enrollment in E-Verify.

(2) The suspension of a business license or permit under subsection (e)(p) shall terminate one business day after a legal representative of the business entity or employer submits a signed, sworn affidavit stating that the business entity or employer is in compliance with the provisions of this article and a copy of the Memorandum of Understanding issued to the business entity or employer to the court.

(r) For a second violation of subsection (e)(n) by a business entity or employer, the court shall direct the applicable state, county, or municipal governing body to permanently revoke allany business licenses and permits, if such exist, held by the business entity or employer specific to the business location where the unauthorized alien performed work.

(s) For a third or subsequent violation of subsection (e),(n), the court shall direct the applicable governing bodies to foreverpermanently suspend theany business licenses and permits, if such exist, of the business 8 CS for SB 656 entity or employer throughout the state.

(t) This section may not be construed to deny any procedural mechanisms or legal Intr SB 656 2023R3758 defenses included in the E-Verify program or any other federal work authorization program.