Bill Text: IA HSB635 | 2021-2022 | 89th General Assembly | Introduced

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Bill Title: A bill for an act relating to the employment of unauthorized aliens and providing penalties.

Spectrum: Committee Bill

Status: (Introduced - Dead) 2022-02-15 - Subcommittee recommends passage. Vote Total: 2-0 [HSB635 Detail]

Download: Iowa-2021-HSB635-Introduced.html

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House Study Bill 635 - Introduced
HOUSE FILE _____
BY (PROPOSED COMMITTEE
ON JUDICIARY BILL BY
CHAIRPERSON HOLT)
A BILL FOR
An Act relating to the employment of unauthorized aliens and
providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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Section 1. NEW SECTION . 95.1 Definitions.
As used in this chapter, unless the context otherwise
requires:
1. “Agency” means an agency, department, board, or
commission of this state or a political subdivision that issues
a license for purposes of operating a business in this state.
2. “Economic development incentive” means a grant, loan, or
performance-based incentive awarded by a government entity of
this state. “Economic development incentive” does not include a
tax credit or tax incentive program.
3. “Employ” means hiring or continuing to employ an
individual to perform services.
4. “Employee” means an individual who provides services
or labor for an employer in this state for wages or other
remuneration. “Employee” does not include an independent
contractor.
5. “Employer” means a person, as defined in chapter 4, that
transacts business in this state, that has a license issued by
an agency in this state, and that employs one or more employees
in this state. “Employer” includes this state, a political
subdivision of this state, and a self-employed individual.
In the case of an independent contractor, “employer” means
the independent contractor and does not mean the person or
organization that uses the contract labor.
6. “E-verify program” means the employment verification
program as jointly administered by the United States department
of homeland security and the United States social security
administration or any successor program.
7. “Government entity” means this state or a political
subdivision of this state that receives and uses tax revenues.
8. a. “Independent contractor” means a person that carries
on an independent business, that contracts to do a piece of
work according to the person’s own means and methods and that
is subject to control only as to results. Whether a person is
an independent contractor is determined on a case-by-case basis
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through various factors, including whether the person does any
of the following:
(1) Supplies tools or materials.
(2) Makes services available to the general public.
(3) Works or may work for a number of clients at the same
time.
(4) Has an opportunity for profit or loss as a result of
labor or service provided.
(5) Invests in facilities for work.
(6) Directs the order or sequence in which the work is
completed.
(7) Determines the hours when the work is completed.
(8) “Knowingly employ an unauthorized alien” means the
actions described in 8 U.S.C. §1324a, and shall be interpreted
consistently with 8 U.S.C. §1324a and any applicable federal
regulations.
b. Independent contractor status includes an individual who
performs services and is not an employee pursuant to section
3508 of the Internal Revenue Code.
9. “License” means a permit, certificate, approval,
registration, charter, or similar form of authorization, other
than a professional license, that is required by law and that
is issued by an agency, allowing the licensee to do business
in this state.
10. “Social security number verification service” means
the program administered by the United States social security
administration or any successor program.
11. “Unauthorized alien” means an alien who does not have
the legal right or authorization under federal law to work in
the United States as described in 8 U.S.C. §1324a(h)(3).
Sec. 2. NEW SECTION . 95.2 Knowingly employing unauthorized
aliens.
1. Knowingly employing unauthorized aliens prohibited. An
employer shall not knowingly employ an unauthorized alien. If
an employer uses a contract, subcontract, or other independent
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contractor agreement to obtain the labor of an alien in
this state, and the employer knowingly contracts with an
unauthorized alien or with a person who employs or contracts
with an unauthorized alien to perform the labor, the employer
violates this subsection.
2. Complaints.
a. The attorney general shall prescribe a complaint form
for a person to allege a violation of subsection 1. The
complainant shall not be required to list the complainant’s
social security number on the complaint form or to have the
complaint form notarized. Complaints shall be submitted to the
attorney general or a county attorney. A complaint that is
submitted to a county attorney shall be submitted to the county
attorney in the county in which the alleged unauthorized alien
is or was employed by the employer. This subsection shall not
be construed to prohibit the filing of anonymous complaints
that are not submitted on a prescribed complaint form.
b. On receipt of a complaint on a prescribed complaint form
that an employer allegedly knowingly employs or employed an
unauthorized alien, the attorney general or county attorney
shall investigate whether the employer has violated subsection
1. If a complaint is received but is not submitted on a
prescribed complaint form, the attorney general or county
attorney may investigate whether the employer has violated
subsection 1.
c. The attorney general or county attorney shall not
investigate complaints that are based solely on race, color,
or national origin. The county sheriff or any other local law
enforcement agency may assist in investigating a complaint and
shall do so upon request by the attorney general or county
attorney. When investigating a complaint, the attorney general
or county attorney shall verify the work authorization of the
alleged unauthorized alien with the federal government pursuant
to 8 U.S.C. §1373(c). A state, county, or local official shall
not attempt to independently make a final determination on
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whether an alien is authorized to work in the United States.
d. A person who knowingly files a false or frivolous
complaint under this subsection is guilty of a simple
misdemeanor.
3. Required notifications.
a. If, after an investigation, the attorney general or
county attorney determines that the complaint is not false and
not frivolous, the attorney general or county attorney shall
notify the following entities of the unauthorized alien:
(1) The United States immigration and customs enforcement.
(2) The local law enforcement agency.
b. The attorney general shall notify the appropriate county
attorney to bring an action pursuant to subsection 4 if the
complaint was originally filed with the attorney general.
4. Court action required. An action for a violation of
subsection 1 shall be brought against the employer by the
county attorney in the district court of the county where the
unauthorized alien employee is or was employed by the employer.
The district court shall expedite the action, including
assigning a hearing at the earliest practicable date.
5. Court order —— first violation. On a finding of a first
violation as described in subsection 7, the court shall require
by order all of the following:
a. The employer shall terminate the employment of all
unauthorized aliens.
b. (1) The employer shall be subject to a three-year
probationary period for the business location where the
unauthorized alien performed work.
(2) During the probationary period, the employer shall file
quarterly reports on the form prescribed in section 252G.3 with
the county attorney for each new employee who is hired by the
employer at the business location where the unauthorized alien
performed work.
c. The employer shall be required to file a signed sworn
affidavit with the county attorney within three business days
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after the order is issued. The affidavit shall state that the
employer has terminated the employment of all unauthorized
aliens in this state and that the employer will not knowingly
employ an unauthorized alien in this state.
(1) The court shall order the appropriate agencies to
suspend all licenses that are held by the employer if the
employer fails to file a signed sworn affidavit with the county
attorney within three business days after the order is issued.
All licenses that are suspended shall remain suspended until
the employer files a signed sworn affidavit with the county
attorney. Upon filing of the affidavit, the suspended licenses
shall be reinstated immediately by the appropriate agencies.
(2) Licenses that are subject to suspension under this
paragraph “c” are all licenses that are held by the employer
specific to the business location where the unauthorized alien
performed work. If the employer does not hold a license
specific to the business location where the unauthorized alien
performed work, but a license is necessary to operate the
employer’s business in general, the licenses that are subject
to suspension under this paragraph “c” are all licenses that
are held by the employer at the employer’s primary place of
business. On receipt of the court’s order, the appropriate
agencies shall suspend the licenses according to the court’s
order. The court shall send a copy of the court’s order to the
attorney general and the attorney general shall maintain the
copy pursuant to subsection 8.
(3) The court may order the appropriate agencies to suspend
all licenses described in this paragraph “c” that are held by
the employer for not more than ten business days. The court
shall base its decision to suspend under this subparagraph
on any evidence or information submitted to it during the
action for a violation of subsection 1 and shall consider the
following factors, if relevant:
(a) The number of unauthorized aliens employed by the
employer.
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(b) Any prior misconduct by the employer.
(c) The degree of harm resulting from the violation.
(d) Whether the employer made good faith efforts to comply
with any applicable requirements.
(e) The duration of the violation.
(f) The role of the directors, officers, or principals of
the employer in the violation.
(g) Any other factors the court deems appropriate.
6. Court order —— second violation. For a second violation,
as described in subsection 7, the court shall order the
appropriate agencies to permanently revoke all licenses that
are held by the employer specific to the business location
where the unauthorized alien performed work. If the employer
does not hold a license specific to the business location
where the unauthorized alien performed work, but a license
is necessary to operate the employer’s business in general,
the court shall order the appropriate agencies to permanently
revoke all licenses that are held by the employer at the
employer’s primary place of business. On receipt of the order,
the appropriate agencies shall immediately revoke the licenses.
7. Violations defined.
a. A violation shall be considered a first violation by
an employer at a business location if the violation did not
occur during a probationary period ordered by the court under
subsection 5, paragraph “b” , for that employer’s business
location.
b. A violation shall be considered a second violation by
an employer at a business location if the violation occurred
during a probationary period ordered by the court under
subsection 5, paragraph “b” , for that employer’s business
location.
8. Attorney general database. The attorney general shall
maintain copies of court orders that are received pursuant to
subsection 5, paragraph “c” , and shall maintain a database of
the employers and business locations found to have committed
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a first violation of subsection 1 and make the court orders
available on the attorney general’s internet site.
9. Federal determination governs. In determining whether
an employee is an unauthorized alien, the court shall consider
only the federal government’s determination pursuant to 8
U.S.C. §1373(c). The federal government’s determination
creates a rebuttable presumption of the employee’s lawful
status. The court may take judicial notice of the federal
government’s determination and may request the federal
government to provide automated or testimonial verification
pursuant to 8 U.S.C. §1373(c).
10. E-verify rebuttable presumption. For the purposes of
this section, proof of verifying the employment authorization
of an employee through the e-verify program creates a
rebuttable presumption that an employer did not knowingly
employ an unauthorized alien.
11. Good-faith compliance. For the purposes of this
section, an employer that establishes that it has complied
in good faith with the requirements of 8 U.S.C. §1324a(b)
establishes an affirmative defense that the employer did
not knowingly employ an unauthorized alien. An employer is
considered to have complied with the requirements of 8 U.S.C.
§1324a(b), notwithstanding an isolated, sporadic, or accidental
technical or procedural failure to meet the requirements, if
there is a good-faith attempt to comply with the requirements.
12. Entrapment as affirmative defense.
a. It is an affirmative defense to a violation of subsection
1 that the employer was entrapped. To claim entrapment, the
employer must admit by the employer’s testimony or other
evidence the substantial elements of the violation. An
employer who asserts an entrapment defense has the burden
of proving all of the following by a preponderance of the
evidence:
(1) The idea of committing the violation started with law
enforcement officers or their agents rather than with the
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employer.
(2) The law enforcement officers or their agents urged and
induced the employer to commit the violation.
(3) The employer was not predisposed to commit the violation
before the law enforcement officers or their agents urged and
induced the employer to commit the violation.
b. An employer does not establish entrapment if the employer
was predisposed to violate subsection 1 and the law enforcement
officers or their agents merely provided the employer with an
opportunity to commit the violation. It is not entrapment for
law enforcement officers or their agents merely to use a ruse
or to conceal their identity. The conduct of law enforcement
officers and their agents may be considered in determining if
an employer has proven entrapment.
Sec. 3. NEW SECTION . 95.3 E-verify program —— employer
participation.
1. An employer, after hiring an employee, shall verify the
employment eligibility of the employee through the e-verify
program and shall keep a record of the verification for the
duration of the employee’s employment or at least three years,
whichever is longer.
2. In addition to any other requirement for an employer to
receive an economic development incentive from a government
entity, the employer shall register with and participate
in the e-verify program. Before receiving the economic
development incentive, the employer shall provide proof to the
government entity that the employer is registered with and
is participating in the e-verify program. If the government
entity determines that the employer is not complying with this
subsection, the government entity shall notify the employer
by certified mail of the government entity’s determination
of noncompliance and the employer’s right to appeal the
determination. On a final determination of noncompliance,
the employer shall repay all moneys received as an economic
development incentive to the government entity within thirty
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days of the final determination.
3. Every three months, the attorney general shall request
from the United States department of homeland security a list
of employers from this state that are registered with the
e-verify program. On receipt of the list of employers, the
attorney general shall make the list available on the attorney
general’s internet site.
Sec. 4. NEW SECTION . 95.4 Compliance with federal and state
law.
This chapter shall not be construed to require an employer to
take any action that the employer believes in good faith would
violate federal or state law.
Sec. 5. IMPLEMENTATION OF ACT. Section 25B.2, subsection
3, shall not apply to this Act.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
This bill prohibits employers from knowingly employing
unauthorized aliens. The bill directs the attorney general
to prescribe a complaint form for alleged violations of
the prohibition. The bill provides that complaints may be
submitted to the attorney general or the county attorney in
the county in which the alleged unauthorized alien is or was
employed by the employer. The bill directs the attorney
general or county attorney to investigate complaints they
receive, and to verify the work authorization of an alleged
unauthorized alien with the federal government. The bill
prohibits the attorney general or county attorney from
investigating complaints that are based solely on race, color,
or national origin. The bill allows a county sheriff or
other local law enforcement to assist in an investigation and
requires such assistance upon request by the attorney general
or county attorney. The bill provides that a person who
knowingly files a false or frivolous complaint is guilty of a
simple misdemeanor, which is punishable by confinement for no
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more than 30 days or a fine of at least $105 but not more than
$855 or by both.
The bill requires the attorney general or county attorney
to notify United States immigration and customs enforcement,
the local law enforcement agency, and, if the attorney general
is the one investigating, the county attorney of a complaint
that is not false and not frivolous. The bill requires the
county attorney to bring an action in district court against an
employer for a violation in the county where the unauthorized
alien employee is or was employed by the employer. The bill
provides that such an action must be expedited by the court.
The bill provides that for a first violation, the court
must order the employer to terminate the employment of all
unauthorized aliens and to submit a signed sworn affidavit
to that effect or face suspension of business licenses by
appropriate agencies. The court will also order a three-year
probationary period for the employer. The court may also
order the suspension of the employer’s business licenses
by appropriate agencies for up to 10 business days, after
considering certain factors. The bill provides that for a
second violation, defined as a violation occurring during a
probationary period for a previous violation, the court must
order the permanent revocation of the employer’s business
licenses. The bill directs the attorney general to maintain an
online database of first-time offenders.
The bill provides that the district court can only consider
a determination by the federal government in determining the
immigration status of an alleged unauthorized alien employed
by an employer. The bill provides that a determination
of lawful status by the federal government will create a
rebuttable presumption of the employee’s lawful status, as
well as a rebuttable presumption that an employer did not
knowingly employ an unauthorized alien. The bill provides
that an employer who establishes that the employer complied in
good faith with 8 U.S.C. §1324a(b) establishes an affirmative
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defense that the employer did not knowingly employ an
unauthorized alien. The bill provides that an employer is
considered to have complied with the requirements of 8 U.S.C.
§1324a(b), notwithstanding an isolated, sporadic, or accidental
technical or procedural failure to meet the requirements, if
there is a good-faith attempt to comply with the requirements.
The bill provides an employer with an affirmative defense of
entrapment if certain elements are met.
The bill requires an employer hiring a new employee to
verify the employee’s employment eligibility through the
federal e-verify program. The bill requires the employer
to keep records of the verification for the duration of the
employee’s employment or three years, whichever is longer. The
bill requires an employer receiving an economic development
incentive from a state government entity to register with the
federal e-verify program. The bill provides that an employer
who does not comply with the requirement must repay all moneys
received for the economic development incentive. The bill
provides an employer the right to appeal a determination of
noncompliance, and does not require repayment until a final
determination of noncompliance is made. The bill directs the
attorney general to request from the United States department
of homeland security a list of employers registered with the
e-verify program every three months. The bill directs the
attorney general to make the list available on the attorney
general’s internet site.
The bill provides that the bill shall not be construed
to require an employer to take any action that the employer
believes in good faith would violate federal or state law.
The bill may include a state mandate as defined in Code
section 25B.3. The bill makes inapplicable Code section 25B.2,
subsection 3, which would relieve a political subdivision from
complying with a state mandate if funding for the cost of
the state mandate is not provided or specified. Therefore,
political subdivisions are required to comply with any state
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mandate included in the bill.
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