MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Judiciary B; Appropriations
By: Representatives Currie, Chism, Boyd, Formby
AN ACT TO CREATE THE "MISSISSIPPI PUBLIC WORKS EMPLOYMENT VERIFICATION ACT"; TO PROVIDE DEFINITIONS; TO REQUIRE EVERY PUBLIC OFFICER, CONTRACTOR, SUPERINTENDENT, OR AGENT ENGAGED IN OR IN CHARGE OF THE CONSTRUCTION OF ANY STATE OR PUBLIC BUILDING OR PUBLIC WORK OF ANY KIND FOR THE STATE OF MISSISSIPPI OR FOR ANY BOARD, CITY COMMISSION, GOVERNMENTAL AGENCY, OR MUNICIPALITY OF THE STATE OF MISSISSIPPI TO USE THE E-VERIFY PROGRAM TO VERIFY EMPLOYMENT ELIGIBILITY; TO PROVIDE THAT THE E-VERIFY PROGRAM SHALL NOT BE USED TO DISCRIMINATE AGAINST AN EMPLOYEE ON THE BASIS OF RACE, ETHNICITY, COLOR OR NATIONAL ORIGIN; TO PROVIDE THAT A PUBLIC WORKS CONTRACTOR OR SUBCONTRACTOR THAT RELIES IN GOOD FAITH ON THE E-VERIFY PROGRAM TO VERIFY EMPLOYMENT ELIGIBILITY OF NEW EMPLOYEES UNDER THIS ACT SHALL BE IMMUNE FROM LIABILITY; TO PROVIDE THAT THE ATTORNEY GENERAL SHALL PROMULGATE RULES AND REGULATIONS NECESSARY TO ADMINISTER AND ENFORCE THIS ACT; TO AMEND SECTIONS 31-5-17 AND 31-5-19, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; TO AMEND SECTION 31-5-21, MISSISSIPPI CODE OF 1972, TO PROVIDE PENALTIES FOR VIOLATING THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Mississippi Public Works Employment Verification Act."
SECTION 2. The following words and phrases shall have the following meanings for this act, unless the context clearly states otherwise:
(a) "Attorney General" means the Attorney General of the State of Mississippi.
(b) "Employee" means an individual hired by a public works contractor or subcontractor for whom a public works contractor or subcontractor is required by law to file a Form W-2 with the Internal Revenue Service.
(c) "E-Verify Program" means the electronic verification program operated by the United States Department of Homeland Security that electronically verifies employment eligibility for employees.
(d) "Public body" means the State of Mississippi, or any of its political subdivisions, any authority created by the Mississippi Legislature and any instrumentality or agency of the State of Mississippi.
(e) "Public work" means any work for a public body officer, contractor, superintendent, or agent engaged in or in charge of the construction of any state or public building or work of any kind for the State of Mississippi or for any board, city commission, governmental agency, or municipality of the State of Mississippi.
(f) "Public works contractor" means a contractor that provides work under a contract involving a public work.
(g) "Subcontractor" means a person, other than a natural person, regardless of the person's job rank, including, but not limited to, a staffing agency that performs work for a public works contractor under a contract for a public work. The term shall not include persons that are material suppliers for a project.
(h) "Willful" means action or conduct undertaken intentionally or with reckless disregard for or deliberate ignorance of the requirements and obligations established under this act.
SECTION 3. (1) Every public officer, contractor, superintendent, or agent engaged in or in charge of the construction of any state or public building or public work of any kind for the State of Mississippi or for any board, city commission, governmental agency, or municipality of the State of Mississippi shall use the E-Verify Program that is operated by the United States Department of Homeland Security to electronically verify employment eligibility for a new employee, and shall post on its publicly accessible Internet website information regarding the requirements of federal law governing the use of the E-Verify Program. The Attorney General of the State of Mississippi shall regulate compliance of this act.
(2) The E-Verify Program shall not be used to discriminate against an employee on the basis of race, ethnicity, color or national origin.
(3) (a) Before beginning work on a public works project, a subcontractor shall provide the public body with a verification form described in this subsection acknowledging its responsibilities and its compliance with this section. Contracts between a subcontractor and its subcontractors shall contain information about the requirements of this act.
(b) The verification form required by this section shall be on a form prescribed by the Attorney General, shall be posted on the Internet and shall comply with the following additional requirements:
(i) The statement shall include a certification that the information in the statement is true and correct and that the individual signing the statement understands that the submission of false or misleading information in connection with the verification shall subject the individual and the public works contractor or subcontractor, as the case may be, to sanctions provided by law.
(ii) The statement shall be signed by a representative of the public works contractor or subcontractor, as applicable, who has sufficient knowledge and authority to make the representations and certifications contained in the statement.
(4) It shall be a violation of this act for a public works contractor or subcontractor on a public work to:
(a) Fail to verify the employment eligibility of a new employee through the E-Verify Program in accordance with federal law;
(b) Fail to provide the verification form as required under this act; or
(c) Make a false statement or misrepresentation with respect to completing the form.
SECTION 4. (1) It shall be unlawful for a public works contractor or subcontractor to discharge, threaten or otherwise retaliate or discriminate against an employee regarding compensation or other terms or conditions of employment because the employee:
(a) Participates in an investigation, hearing or inquiry held under the authority of this act.
(b) Reports or makes a complaint regarding the violation of this act to a public works contractor or subcontractor or to any governmental authority.
(c) An employee who suffers retaliation or discrimination in violation of this section may bring an action in the chancery court of the county in which the employee lives in accordance with rules of Mississippi Civil Procedure.
(d) The action must be brought within one hundred eighty (180) days from the date the employee knew of the retaliation or discrimination.
(2) If an employee prevails in an action commenced under this section, the employee shall be entitled to the following relief:
(a) Reinstatement of the employee, if applicable.
(b) Restitution equal to three (3) times the amount of the employee's wages and fringe benefits calculated from the date of the retaliation or discrimination.
(c) Reasonable attorney's fees and costs of the action.
(d) Any other legal and equitable relief as the court deems appropriate.
SECTION 5. A public works contractor or subcontractor who relies in good faith on the E-Verify Program to verify employment eligibility of new employees under this act shall be immune from the sanctions authorized under this act and shall have no liability to an individual who is not hired or who is discharged from employment, if that incorrect information has been provided to the public works contractor or subcontractor. A public works contractor or subcontractor that can produce written acknowledgment provided by an applicable federal agency of use of the E-Verify Program is considered to have acted in good faith.
Section 6. This act shall not be construed to render a public works contractor liable for the action of a subcontractor liable for an action of another subcontractor.
Section 7. The Attorney General shall promulgate the rules and regulations necessary to administer and enforce this act.
Section 8. The Attorney General may enter into agreements with any other state agency to provide for the cooperative enforcement of the provisions of this act.
SECTION 9. Section 31-5-17, Mississippi Code of 1972, is amended as follows:
31-5-17. Every public
officer, contractor, superintendent, or agent engaged in or in charge of the
construction of any state or public building or public work of any kind for the
State of Mississippi or for any board, city commission, governmental agency, or
municipality of the State of Mississippi shall employ only workmen and laborers
who have actually resided in Mississippi for two (2) years next preceding such
employment * * *
and who are in the country legally under the immigration laws.
SECTION 10. Section 31-5-19, Mississippi Code of 1972, is amended as follows:
31-5-19. (1) In the
event workmen or laborers qualified under the provisions of Section 31-5-17 are
not available, then the contractor, officer, superintendent, agent, or person
in charge of such work shall notify in writing the mayor of the city in which
said work is being done, the president of the board of supervisors of the
county in which said work is being done, the Governor where said work is being
done for the State of Mississippi, and the president, chairman, or executive
officer of such board, city commission, or governmental agency for which said
work is being done, of such fact. Unless the mayor, Governor, president,
executive officer, or chairman aforesaid, as the case may be, shall forthwith
supply such contractor, officer, superintendent, agent, or person in charge of
said works with the satisfactory workmen or laborers needed, said contractor,
officer, superintendent, agent, or person shall be authorized to employ workmen
or laborers who are not qualified under the provisions of Section 31-5-17 to
make up the deficiency. Nothing herein shall be construed to prevent the State
of Mississippi, any county, municipality, board, or commission from placing or
letting any contract for the erection or construction of any public building or
public work in the open market, or soliciting bids from persons, firms, or
corporations * * *
outside the State of Mississippi. Any person, * * * firm, or corporation from * * * outside the State of Mississippi
that may obtain such contracts for public buildings or public works shall
comply with the provisions of Section 31-5-17 upon undertaking the said
contract or work.
(2) Any person, firm, or corporation outside the State of Mississippi shall comply with the E-Verify Program requirements of Section 31-5-19(2) and fined as provided in Section 31-5-21.
SECTION 11. Section 31-5-21, Mississippi Code of 1972, is amended as follows:
31-5-21. (1) Any contractor, officer, superintendent, agent, or person in charge of said work who shall violate any of the provisions of Section 31-5-17, shall be liable upon conviction before a court of competent jurisdiction to a fine of not more than One Hundred Dollars ($100.00) or to imprisonment of not more than sixty (60) days, or both at the discretion of the court; and every day's employment of each workman or laborer in such violation shall constitute a separate offense.
However, where any workman or laborer furnishes such employer with a certificate by the sheriff, chancery clerk, or county registrar of the county of his domicile to the effect that such workman or laborer has actually resided in this state two (2) years next preceding such employment, such employer, acting in good faith, shall be relieved of any liability by reason of employing such person.
(2) The following sanctions shall apply only to a violation under Sections 1 through 8 of this act and Section 31-5-19(2):
(a) For a first violation, a public works contractor or subcontractor shall receive a warning letter from the Attorney General detailing the violation. The letter shall be posted on the department's Internet website.
(b) For a second violation, a public works contractor or subcontractor shall be barred from public work for thirty (30) days.
(c) For a third violation and subsequent violations, a public works contractor or subcontractor shall be barred from public work for not less than one hundred eighty (180) days and not more than one (1) year.
(d) In the case of an alleged willful violation, the Attorney General shall file a petition in the chancery court of the county in which the alleged violation occurred seeking to have the court issue a rule to show cause why a public works contractor or subcontractor did not engage in the willful violation. If the court finds that the public works contractor or subcontractor did engage in a willful violation, the court shall bar the public works contractor or subcontractor from public work for a period of three (3) years.
(e) Notwithstanding the provisions of paragraph (a), (b) or (c) of this subsection, a violation by a public works contractor or subcontractor that occurs ten (10) years or more after a prior violation shall be deemed to be a first violation.
(f) For the purposes of assessing sanctions, violations committed by a contractor or subcontractor subject to this act involving a single public works contract shall be considered a single violation despite the number of employees that are the subject of the violations.
(3) A public works contractor or subcontractor that violates Section 1 of this act shall be subject to a civil penalty of not less than Two Hundred Fifty Dollars ($250.00) and not more than One Thousand Dollars ($1,000.00) for each violation, to be imposed by the department.
(4) Actions taken by the Attorney General under this act shall be subject to the notice, appeal and other requirements of the Mississippi Administrative Procedures Act.
SECTION 12. This act shall take effect and be in force from and after July 1, 2013.