Bill Text: IA SF243 | 2019-2020 | 88th General Assembly | Introduced

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Bill Title: A bill for an act relating to the employment of unauthorized aliens and providing penalties. (See SF 516.)

Spectrum: Partisan Bill (Republican 26-0)

Status: (Introduced - Dead) 2019-03-06 - Committee report approving bill, renumbered as SF 516. S.J. 490. [SF243 Detail]

Download: Iowa-2019-SF243-Introduced.html

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Senate File 243 - Introduced
SENATE FILE 243
BY GARRETT , CHAPMAN , GUTH ,
JOHNSON , WHITING , SEGEBART ,
GREENE , ZUMBACH , BEHN ,
ROZENBOOM , KAPUCIAN ,
SHIPLEY , ZAUN , CARLIN ,
SINCLAIR , SWEENEY ,
COSTELLO , COURNOYER ,
KRAAYENBRINK , EDLER ,
FEENSTRA , NUNN , R. SMITH ,
SCHULTZ , MILLER-MEEKS , and
BREITBACH
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 section 4.1,
that transacts business in this state and that has a license
issued by an agency 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.
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. “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.
10. “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.
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
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
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with an unauthorized alien to perform the labor, the employer
violates this subsection.
2. 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
scheduling a hearing at the earliest practicable date.
3. Court order —— first violation. On a finding of a first
violation as described in subsection 5, 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
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.
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(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
secretary of state and the secretary of state shall maintain
the copy pursuant to subsection 6.
(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.
(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.
4. Court order —— second violation. For a second violation,
as described in subsection 5, the court shall order the
appropriate agencies to permanently revoke all licenses that
are held by the employer specific to the business location
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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.
5. 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 3, 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 3, paragraph “b” , for that employer’s business
location.
6. Secretary of state database. The secretary of state
shall maintain copies of court orders that are received
pursuant to subsection 3, paragraph “c” , and shall maintain a
database of the employers and business locations found to have
committed a first violation of subsection 1 and make the court
orders available on the secretary of state’s internet site.
7. Federal determination creates rebuttable presumption. In
determining whether an employee is an unauthorized alien, the
court shall consider the federal government’s determination
of the immigration status of the employee pursuant to 8
U.S.C. §1373(c). The court may take judicial notice of the
federal government’s determination. The federal government’s
determination that the employee is an unauthorized alien
creates a rebuttable presumption of the employee’s unauthorized
status. The employer may present evidence that the employee
is not an unauthorized alien.
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8. 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
a conclusive 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.
9. 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
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 —— economic development incentives from government
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entities.
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
days of the final determination.
3. Every three months, the secretary of state 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 secretary of state shall make the list available on the
secretary of state’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
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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 defines “employer” as a person that transacts
business in this state and that has a license issued by an
agency 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.
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 must 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 specified 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 secretary of state to maintain
an online database of first-time offenders.
In determining the immigration status of an alleged
unauthorized alien employed by an employer, the bill requires
the district court to consider the federal government’s
determination of the immigration status of the employee. The
federal government’s determination that the employee is an
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unauthorized alien creates a rebuttable presumption of the
employee’s unauthorized status. The employer may present
evidence that the employee is not 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),
relating to verification of authorization for employment,
establishes a conclusive affirmative 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
secretary of state 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
secretary of state to make the list available on the secretary
of state’s internet site.
The bill provides that the bill shall not be construed
to require an employer to take any action that the employer
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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
mandate included in the bill.
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