Bill Text: IA HF205 | 2017-2018 | 87th General Assembly | Introduced
Bill Title: A bill for an act relating to the employment of unauthorized aliens and providing penalties.
Spectrum: Partisan Bill (Republican 5-0)
Status: (Introduced - Dead) 2017-02-06 - Introduced, referred to Commerce. H.J. 191. [HF205 Detail]
Download: Iowa-2017-HF205-Introduced.html
House File 205 - Introduced HOUSE FILE BY FISHER, SHEETS, HOLZ, SALMON, and WHEELER A BILL FOR 1 An Act relating to the employment of unauthorized aliens and 2 providing penalties. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: TLSB 1825YH (2) 87 je/rj PAG LIN 1 1 Section 1. NEW SECTION. 93.1 Definitions. 1 2 As used in this chapter, unless the context otherwise 1 3 requires: 1 4 1. "Agency" means an agency, department, board, or 1 5 commission of this state or a political subdivision that issues 1 6 a license for purposes of operating a business in this state. 1 7 2. "Economic development incentive" means a grant, loan, or 1 8 performance=based incentive awarded by a government entity of 1 9 this state. "Economic development incentive" does not include a 1 10 tax credit or tax incentive program. 1 11 3. "Employ" means hiring or continuing to employ an 1 12 individual to perform services. 1 13 4. "Employee" means an individual who provides services 1 14 or labor for an employer in this state for wages or other 1 15 remuneration. "Employee" does not include an independent 1 16 contractor. 1 17 5. "Employer" means a person, as defined in section 4.1, 1 18 that transacts business in this state, that has a license 1 19 issued by an agency in this state, and that employs twenty=five 1 20 or more full=time employees in this state. "Employer" includes 1 21 this state, a political subdivision of this state, and a 1 22 self=employed individual. In the case of an independent 1 23 contractor, "employer" means the independent contractor and 1 24 does not mean the person or organization that uses the contract 1 25 labor. 1 26 6. "E=verify program" means the employment verification 1 27 program as jointly administered by the United States department 1 28 of homeland security and the United States social security 1 29 administration or any successor program. 1 30 7. "Government entity" means this state or a political 1 31 subdivision of this state that receives and uses tax revenues. 1 32 8. a. "Independent contractor" means a person that carries 1 33 on an independent business, that contracts to do a piece of 1 34 work according to the person's own means and methods and that 1 35 is subject to control only as to results. Whether a person is 2 1 an independent contractor is determined on a case=by=case basis 2 2 through various factors, including whether the person does any 2 3 of the following: 2 4 (1) Supplies tools or materials. 2 5 (2) Makes services available to the general public. 2 6 (3) Works or may work for a number of clients at the same 2 7 time. 2 8 (4) Has an opportunity for profit or loss as a result of 2 9 labor or service provided. 2 10 (5) Invests in facilities for work. 2 11 (6) Directs the order or sequence in which the work is 2 12 completed. 2 13 (7) Determines the hours when the work is completed. 2 14 b. Independent contractor status includes an individual who 2 15 performs services and is not an employee pursuant to section 2 16 3508 of the Internal Revenue Code. 2 17 9. "Knowingly employ an unauthorized alien" means the 2 18 actions described in 8 U.S.C. {1324a, and shall be interpreted 2 19 consistently with 8 U.S.C. {1324a and any applicable federal 2 20 regulations. 2 21 10. "License" means a permit, certificate, approval, 2 22 registration, charter, or similar form of authorization, other 2 23 than a professional license, that is required by law and that 2 24 is issued by an agency, allowing the licensee to do business 2 25 in this state. 2 26 11. "Unauthorized alien" means an alien who does not have 2 27 the legal right or authorization under federal law to work in 2 28 the United States as described in 8 U.S.C. {1324a(h)(3). 2 29 Sec. 2. NEW SECTION. 93.2 Knowingly employing unauthorized 2 30 aliens. 2 31 1. Knowingly employing unauthorized aliens prohibited. An 2 32 employer shall not knowingly employ an unauthorized alien. If 2 33 an employer uses a contract, subcontract, or other independent 2 34 contractor agreement to obtain the labor of an alien in 2 35 this state, and the employer knowingly contracts with an 3 1 unauthorized alien or with a person who employs or contracts 3 2 with an unauthorized alien to perform the labor, the employer 3 3 violates this subsection. 3 4 2. Court action required. An action for a violation of 3 5 subsection 1 shall be brought against the employer by the 3 6 county attorney in the district court of the county where the 3 7 unauthorized alien employee is or was employed by the employer. 3 8 The district court shall expedite the action, including 3 9 scheduling a hearing at the earliest practicable date. 3 10 3. Court order ==== first violation. On a finding of a first 3 11 violation as described in subsection 5, the court shall require 3 12 by order all of the following: 3 13 a. The employer shall terminate the employment of all 3 14 unauthorized aliens. 3 15 b. (1) The employer shall be subject to a three=year 3 16 probationary period for the business location where the 3 17 unauthorized alien performed work. 3 18 (2) During the probationary period, the employer shall file 3 19 quarterly reports on the form prescribed in section 252G.3 with 3 20 the county attorney for each new employee who is hired by the 3 21 employer at the business location where the unauthorized alien 3 22 performed work. 3 23 c. The employer shall be required to file a signed sworn 3 24 affidavit with the county attorney within three business days 3 25 after the order is issued. The affidavit shall state that the 3 26 employer has terminated the employment of all unauthorized 3 27 aliens in this state and that the employer will not knowingly 3 28 employ an unauthorized alien in this state. 3 29 (1) The court shall order the appropriate agencies to 3 30 suspend all licenses that are held by the employer if the 3 31 employer fails to file a signed sworn affidavit with the county 3 32 attorney within three business days after the order is issued. 3 33 All licenses that are suspended shall remain suspended until 3 34 the employer files a signed sworn affidavit with the county 3 35 attorney. Upon filing of the affidavit, the suspended licenses 4 1 shall be reinstated immediately by the appropriate agencies. 4 2 (2) Licenses that are subject to suspension under this 4 3 paragraph "c" are all licenses that are held by the employer 4 4 specific to the business location where the unauthorized alien 4 5 performed work. If the employer does not hold a license 4 6 specific to the business location where the unauthorized alien 4 7 performed work, but a license is necessary to operate the 4 8 employer's business in general, the licenses that are subject 4 9 to suspension under this paragraph "c" are all licenses that 4 10 are held by the employer at the employer's primary place of 4 11 business. On receipt of the court's order, the appropriate 4 12 agencies shall suspend the licenses according to the court's 4 13 order. The court shall send a copy of the court's order to the 4 14 secretary of state and the secretary of state shall maintain 4 15 the copy pursuant to subsection 6. 4 16 (3) The court may order the appropriate agencies to suspend 4 17 all licenses described in this paragraph "c" that are held by 4 18 the employer for not more than ten business days. The court 4 19 shall base its decision to suspend under this subparagraph 4 20 on any evidence or information submitted to it during the 4 21 action for a violation of subsection 1 and shall consider the 4 22 following factors, if relevant: 4 23 (a) The number of unauthorized aliens employed by the 4 24 employer. 4 25 (b) Any prior misconduct by the employer. 4 26 (c) The degree of harm resulting from the violation. 4 27 (d) Whether the employer made good faith efforts to comply 4 28 with any applicable requirements. 4 29 (e) The duration of the violation. 4 30 (f) The role of the directors, officers, or principals of 4 31 the employer in the violation. 4 32 (g) Any other factors the court deems appropriate. 4 33 4. Court order ==== second violation. For a second violation, 4 34 as described in subsection 5, the court shall order the 4 35 appropriate agencies to permanently revoke all licenses that 5 1 are held by the employer specific to the business location 5 2 where the unauthorized alien performed work. If the employer 5 3 does not hold a license specific to the business location 5 4 where the unauthorized alien performed work, but a license 5 5 is necessary to operate the employer's business in general, 5 6 the court shall order the appropriate agencies to permanently 5 7 revoke all licenses that are held by the employer at the 5 8 employer's primary place of business. On receipt of the order, 5 9 the appropriate agencies shall immediately revoke the licenses. 5 10 5. Violations defined. 5 11 a. A violation shall be considered a first violation by 5 12 an employer at a business location if the violation did not 5 13 occur during a probationary period ordered by the court under 5 14 subsection 3, paragraph "b", for that employer's business 5 15 location. 5 16 b. A violation shall be considered a second violation by 5 17 an employer at a business location if the violation occurred 5 18 during a probationary period ordered by the court under 5 19 subsection 3, paragraph "b", for that employer's business 5 20 location. 5 21 6. Secretary of state database. The secretary of state 5 22 shall maintain copies of court orders that are received 5 23 pursuant to subsection 3, paragraph "c", and shall maintain a 5 24 database of the employers and business locations found to have 5 25 committed a first violation of subsection 1 and make the court 5 26 orders available on the secretary of state's internet site. 5 27 7. Federal determination creates rebuttable presumption. In 5 28 determining whether an employee is an unauthorized alien, the 5 29 court shall consider the federal government's determination 5 30 of the immigration status of the employee pursuant to 8 5 31 U.S.C. {1373(c). The court may take judicial notice of the 5 32 federal government's determination. The federal government's 5 33 determination that the employee is an unauthorized alien 5 34 creates a rebuttable presumption of the employee's unauthorized 5 35 status. The employer may present evidence that the employee 6 1 is not an unauthorized alien. 6 2 8. Good=faith compliance. For the purposes of this section, 6 3 an employer that establishes that it has complied in good 6 4 faith with the requirements of 8 U.S.C. {1324a(b) establishes 6 5 a conclusive affirmative defense that the employer did not 6 6 knowingly employ an unauthorized alien. An employer is 6 7 considered to have complied with the requirements of 8 U.S.C. 6 8 {1324a(b), notwithstanding an isolated, sporadic, or accidental 6 9 technical or procedural failure to meet the requirements, if 6 10 there is a good=faith attempt to comply with the requirements. 6 11 9. Entrapment as affirmative defense. 6 12 a. It is an affirmative defense to a violation of subsection 6 13 1 that the employer was entrapped. To claim entrapment, the 6 14 employer must admit by the employer's testimony or other 6 15 evidence the substantial elements of the violation. An 6 16 employer who asserts an entrapment defense has the burden 6 17 of proving all of the following by a preponderance of the 6 18 evidence: 6 19 (1) The idea of committing the violation started with law 6 20 enforcement officers or their agents rather than with the 6 21 employer. 6 22 (2) The law enforcement officers or their agents urged and 6 23 induced the employer to commit the violation. 6 24 (3) The employer was not predisposed to commit the violation 6 25 before the law enforcement officers or their agents urged and 6 26 induced the employer to commit the violation. 6 27 b. An employer does not establish entrapment if the employer 6 28 was predisposed to violate subsection 1 and the law enforcement 6 29 officers or their agents merely provided the employer with an 6 30 opportunity to commit the violation. It is not entrapment for 6 31 law enforcement officers or their agents merely to use a ruse 6 32 or to conceal their identity. The conduct of law enforcement 6 33 officers and their agents may be considered in determining if 6 34 an employer has proven entrapment. 6 35 Sec. 3. NEW SECTION. 93.3 E=verify program ==== employer 7 1 participation ==== economic development incentives from government 7 2 entities. 7 3 1. An employer, after hiring an employee, shall verify the 7 4 employment eligibility of the employee through the e=verify 7 5 program and shall keep a record of the verification for the 7 6 duration of the employee's employment or at least three years, 7 7 whichever is longer. 7 8 2. In addition to any other requirement for an employer to 7 9 receive an economic development incentive from a government 7 10 entity, the employer shall register with and participate 7 11 in the e=verify program. Before receiving the economic 7 12 development incentive, the employer shall provide proof to the 7 13 government entity that the employer is registered with and 7 14 is participating in the e=verify program. If the government 7 15 entity determines that the employer is not complying with this 7 16 subsection, the government entity shall notify the employer 7 17 by certified mail of the government entity's determination 7 18 of noncompliance and the employer's right to appeal the 7 19 determination. On a final determination of noncompliance, 7 20 the employer shall repay all moneys received as an economic 7 21 development incentive to the government entity within thirty 7 22 days of the final determination. 7 23 3. Every three months, the secretary of state shall request 7 24 from the United States department of homeland security a 7 25 list of employers from this state that are registered with 7 26 the e=verify program. On receipt of the list of employers, 7 27 the secretary of state shall make the list available on the 7 28 secretary of state's internet site. 7 29 Sec. 4. NEW SECTION. 93.4 Compliance with federal and state 7 30 law. 7 31 This chapter shall not be construed to require an employer to 7 32 take any action that the employer believes in good faith would 7 33 violate federal or state law. 7 34 Sec. 5. IMPLEMENTATION OF ACT. Section 25B.2, subsection 7 35 3, shall not apply to this Act. 8 1 EXPLANATION 8 2 The inclusion of this explanation does not constitute agreement with 8 3 the explanation's substance by the members of the general assembly. 8 4 This bill prohibits employers from knowingly employing 8 5 unauthorized aliens. 8 6 The bill defines "employer" as a person that transacts 8 7 business in this state, that has a license issued by an agency 8 8 in this state, and that employs 25 or more full=time employees 8 9 in this state. "Employer" includes this state, a political 8 10 subdivision of this state, and a self=employed individual. 8 11 In the case of an independent contractor, "employer" means 8 12 the independent contractor and does not mean the person or 8 13 organization that uses the contract labor. 8 14 The bill requires the county attorney to bring an action 8 15 in district court against an employer for a violation in the 8 16 county where the unauthorized alien employee is or was employed 8 17 by the employer. The bill provides that such an action must be 8 18 expedited by the court. 8 19 The bill provides that for a first violation, the court 8 20 must order the employer to terminate the employment of all 8 21 unauthorized aliens and to submit a signed sworn affidavit 8 22 to that effect or face suspension of business licenses by 8 23 appropriate agencies. The court must also order a three=year 8 24 probationary period for the employer. The court may also 8 25 order the suspension of the employer's business licenses 8 26 by appropriate agencies for up to 10 business days, after 8 27 considering certain factors. The bill provides that for a 8 28 second violation, defined as a violation occurring during a 8 29 probationary period for a previous violation, the court must 8 30 order the permanent revocation of the employer's business 8 31 licenses. The bill directs the secretary of state to maintain 8 32 an online database of first=time offenders. 8 33 In determining the immigration status of an alleged 8 34 unauthorized alien employed by an employer, the bill requires 8 35 the district court to consider the federal government's 9 1 determination of the immigration status of the employee. The 9 2 federal government's determination that the employee is an 9 3 unauthorized alien creates a rebuttable presumption of the 9 4 employee's unauthorized status. The employer may present 9 5 evidence that the employee is not an unauthorized alien. 9 6 The bill provides that an employer who establishes that 9 7 the employer complied in good faith with 8 U.S.C. {1324a(b) 9 8 establishes a conclusive affirmative defense that the employer 9 9 did not knowingly employ an unauthorized alien. The bill 9 10 provides that an employer is considered to have complied with 9 11 the requirements of 8 U.S.C. {1324a(b), notwithstanding an 9 12 isolated, sporadic, or accidental technical or procedural 9 13 failure to meet the requirements, if there is a good=faith 9 14 attempt to comply with the requirements. The bill provides an 9 15 employer with an affirmative defense of entrapment if certain 9 16 elements are met. 9 17 The bill requires an employer hiring a new employee to 9 18 verify the employee's employment eligibility through the 9 19 federal e=verify program. The bill requires the employer 9 20 to keep records of the verification for the duration of the 9 21 employee's employment or three years, whichever is longer. The 9 22 bill requires an employer receiving an economic development 9 23 incentive from a state government entity to register with the 9 24 federal e=verify program. The bill provides that an employer 9 25 who does not comply with the requirement must repay all moneys 9 26 received for the economic development incentive. The bill 9 27 provides an employer the right to appeal a determination of 9 28 noncompliance, and does not require repayment until a final 9 29 determination of noncompliance is made. The bill directs the 9 30 secretary of state to request from the United States department 9 31 of homeland security a list of employers registered with the 9 32 e=verify program every three months. The bill directs the 9 33 secretary of state to make the list available on the secretary 9 34 of state's internet site. 9 35 The bill provides that the bill shall not be construed 10 1 to require an employer to take any action that the employer 10 2 believes in good faith would violate federal or state law. 10 3 The bill may include a state mandate as defined in Code 10 4 section 25B.3. The bill makes inapplicable Code section 25B.2, 10 5 subsection 3, which would relieve a political subdivision from 10 6 complying with a state mandate if funding for the cost of 10 7 the state mandate is not provided or specified. Therefore, 10 8 political subdivisions are required to comply with any state 10 9 mandate included in the bill. LSB 1825YH (2) 87 je/rj
