HB 4198 — E-Verify Safe Harbor Act

HB4198 SFATSFA Morris #1#2 3-14Wolfe 7816 Senator Morris moved to amend the billcommittee amendment by striking out theeverything titleafter andthe substitutingarticle thereforheading aand newinserting title,in tolieu readthereof asthe follows:Eng.following:

Com.§21-1B-2.

Sub.Definitions.

for (a) House“Employer” Billmeans 4198—Aany Billindividual, 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 amendemploy andan reenactindividual §21-1B-2,or §21-1B-3,individuals.(b) and“Commissioner” §21-1B-5means the labor commissioner or his or her designated agent.(c) “Unauthorized worker” means a person who does not have the legal right to be employed or is employed in violation of law.(d) “Records” means records that may be required by the Codecommissioner of Westlabor Virginia,for 1931,the aspurposes amended;of compliance with the provisions of this article.(e) “Knowingly” means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware by documentation or action that the person’s conduct is of that nature or that the circumstance exists.

Failure to amendrequest theor codereview documentation of an employee’s legal status or authorization to work is deemed to be “knowingly”.(f) “License” means any permit, certificate, approval, registration, charter or similar form of authorization that is required by addinglaw and that is issued for the purpose of operating a newbusiness section,in this state.The words defined in this section have the meanings given to them for purposes of this article unless the context clearly requires otherwise.“Commissioner” means the labor commissioner or his or her designated §21-1B-9;agent.“E-Verify” means the electronic verification of federal employment authorization program of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, PL 104-208, 8 U.S.C.

§ 1324a, and tooperated repealby §21-1B-6,the §21-1B-7,United andStates §21-1B-8,Department relatingof Homeland Security, or its successor program.“Knowingly” means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware by documentation or action that the E-Verifyperson’s employmentconduct verificationis system;of that nature or that the circumstance exists.

providingFailure to request or review documentation of an employee’s legal status or authorization to work is deemed to be “knowingly”.“License” means any permit, certificate, approval, registration, charter or similar form of authorization that is required by law and that is issued for the purpose of operating a definition;business in this state.“Private employer” means a person or entity that transacts business in this state, is required to have a license issued by an agency, department, board, commission, or political subdivision that issues licenses for the purposes of operating a business in this state, and  employs one or more employees in this state who is required by federal law to complete and maintain federal employment eligibility verification forms or documents.

removing “Public certainemployer” criminalmeans penalties;any department, board, bureau, agency, commission, division, office, council, or committee of the state government, public benefit corporation, public authority, or public subdivision of the state which employs an individual or individuals.“Records” means records that may be required by the commissioner of labor for the purposes of compliance with the provisions of this article.“Unauthorized worker” means a person who does not have the legal right to be employed or is employed in violation of law.

revising§21-1B-3. business-license sanctions;

removingUnauthorized prohibitionworkers; on claiming certain business-expense deductions;

providing a safe harbor for an employer that uses the E-Verify employment verificationprohibited. system;

and (a) providingIt is unlawful for rulemaking.any employer to knowingly employ, hire, recruit 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 employees legal status or authorization to work prior to employing the individual or contracting with the individual for employment services.

     AdoptedRejected(c) All public employers shall verify a person’s employment eligibility by using the E-Verify system in compliance with all procedures, rules, and requirements governing the program as set forth by the United States Department of Homeland Security.(d) All private employers shall verify a person’s employment eligibility by either:(1) Using the E-Verify system in compliance with all procedures, rules, and requirements governing the program as set forth by the United States Department of Homeland Security;

or(2) Requiring the person to provide proof of legal status or authorization to work.

For purposes of this article, proof 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 Division of Labor, a valid permit issued by the Department of Justice or other valid document providing evidence of legal residence or authorization to work in the United States.

(e)  An employer that complies with this section shall not be held civilly or criminally liable under state law for hiring, refusing to hire, or employing an individual if the employer relied in good faith on information obtained through the E-Verify program indicating that the individual was authorized or unauthorized to work in the United States.

This protection shall not apply if the employer knows or receives notice that the individual is an unauthorized worker and hires or continues to employ that individual.(f) For purposes of this section, compliance with subsection (d) creates a rebuttable presumption that a private employer did not knowingly employ an unauthorized alien in violation of §21-1B-3(a) of this code.

 (d) (g) 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.

The commissioner shall promulgate rules in accordance with the provisions of §29A-3-1 et seq.

of this code to safeguard against the release of any confidential or identifying information that is not necessary for the limited purpose of enforcing the provisions of this article.

§21-1B-5.

Penalties.

 (a) Any employer who knowingly and willfully fails to maintain records as required by §21-1B-4 of this code is guilty of a misdemeanor and, upon conviction thereof, shall be fined $100 for each offense.

Failure to keep records on each employee constitutes a separate offense.(b) Any employer who knowingly violates the provisions of section three of this article by employing, hiring, recruiting or referring an unauthorized worker is guilty of a misdemeanor and, upon conviction thereof, is subject to the following penalties:(1) For a first offense, a fine of not less than $100 nor more than $1,000 for each violation;(2) For a second offense, a fine of not less than $500 nor more than $5,000 for each violation;(3) For a third or subsequent offense, a fine of not less than $1,000 nor more than $10,000, or confinement in jail for not less than thirty days nor more than one year, or both.(c) (b) Any employer who knowingly and willfully provides false records as to the legal status or authorization to work of any employee to the commissioner or his or her authorized representative is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not more than one year or fined not more than $2,500, or both.(d) (c) Any employer who knowingly and willfully and with fraudulent intent sells, transfers, or otherwise disposes of substantially all of the employer’s assets for the purpose of evading the record-keeping requirements of section four of this article is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not more than one year or fined not more than $10,000, or both.(d) Any private employer who knowingly violates the provisions of §21-1B-3 of this code by employing, hiring, recruiting, or referring an unauthorized worker is subject to the following penalties:

(1) For a first offense, the commissioner shall, after providing notice and an opportunity to be heard pursuant to §29A-5-1 et seq.

of this code, issue an order imposing a written warning to the employer.

Any private employer who is not in compliance with the provisions of this article within 14 days of the commissioner’s final order is subject to the sanctions set forth in §21-1B-5(f) of this code.(2) For a second offense, the commissioner shall, after providing notice and an opportunity to be heard pursuant to §29A-5-1 et seq.

of this code: (A) Publicly post notice of the violation on the division’s website;

and (B) Prohibit the employer from bidding on, entering into, or renewing any contract with the state or any political subdivision thereof for a period of not less than two years.(3) For a third or subsequent offense, the commissioner shall, after providing notice and an opportunity to be heard pursuant to §29A-5-1 et seq.

of this code take action to permanently revoke the employer’s business license.

The commissioner shall permanently suspend the business license of the employer upon making specific findings that the employer knowingly and willfully violated the provisions of this article and shall then order that any applicable governing body will permanently suspend the employer’s business license.(e) For purposes of this section, a knowing and willful violation of §21-1B-3 of this code shall be considered a first, second, or third violation only by reference to prior violations of §21-1B-3 of this code that: (1) Were finally determined by issuance of an order imposing a written notice or final order of the commissioner issued pursuant to §29A-5-1 et seq.

of this code;

and(2) Occurred within two years immediately preceding the date of the violation at issue, as determined in the applicable final order.  §21-1B-6.

Denial of deductible business expense.

 [Repealed.] §21-1B-7.

Suspension or revocation of license.

 [Repealed.] §21-1B-8.

Citation for violation.

 [Repealed.] §21-1B-9.

Rulemaking.