Bill Text: MS SB2365 | 2013 | Regular Session | Introduced
Bill Title: Employment Protection Act; revise and clarify.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Failed) 2013-02-05 - Died In Committee [SB2365 Detail]
Download: Mississippi-2013-SB2365-Introduced.html
MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Judiciary, Division A
By: Senator(s) Watson, McDaniel
Senate Bill 2365
AN ACT TO AMEND SECTION 71-11-3, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR RETENTION OF E-VERIFY CONFIRMATIONS FOR AT LEAST 3 YEARS, REVISE AND CLARIFY ENFORCEMENT AND PENALTIES UNDER THE MISSISSIPPI EMPLOYMENT PROTECTION ACT, REVISE DEFINITIONS, AND PROVIDE FOR EXPEDITING TRIAL OF VIOLATIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 71-11-3, Mississippi Code of 1972, is amended as follows:
71-11-3. (1) This chapter shall be known as the "Mississippi Employment Protection Act."
(2) The provisions of this section shall be enforced without regard to race, gender, religion, ethnicity or national origin.
(3) For the purpose of this section only, the following words shall have the meanings ascribed herein unless the content clearly states otherwise:
(a) "Employer" is any person or business that is required by federal or state law to issue a United States Internal Revenue Service Form W-2 or Form 1099 to report income paid to employed or contracted personnel in Mississippi.
(b) "Employee" is any person or entity that is hired to perform work within the State of Mississippi and to whom a United States Internal Revenue Service Form W-2 or Form 1099 must be issued.
(c) "Third-party employer" is any person or company that provides workers for another person or company. This includes, but is not limited to, leasing companies and contract employers.
(d) "Status verification system" means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Public Law 104-208, Division C, Section 403(a); 8 USC, Section 1324a, and operated by the United States Department of Homeland Security, known as the E-Verify Program.
(e) "Unauthorized alien" means an alien as defined in Section 1324a(h)(3) of Title 8 of the United States Code.
(f) "Legal alien" means an individual who was lawfully present in the United States at the time of employment and for the duration of employment, or who was permanently residing in the United States under color of law at the time of employment and for the duration of employment.
( * * *g) "Public employer" means
every department, agency or instrumentality of the state or a political subdivision
of the state.
( * * *h) "Subcontractor" means a
subcontractor, contract employee, staffing agency or any contractor regardless
of its tier.
(i) "Solicit" means communication, whether verbally or nonverbally by the gesture or a nod, that would indicate to a reasonable person that a person is willing to be employed.
(4) (a) Employers in the
State of Mississippi shall only hire employees who are legal citizens of the
United States of America or are legal aliens. * * *
An employer that knowingly or intentionally uses a
third-party employer to obtain the labor of an unauthorized alien in this state
violates this subsection.
(b) (i) The Attorney General shall prescribe a complaint form for a person to allege a violation of paragraph (a) of this subsection (4). The complainant shall not be required to list the complainant's social security number on the complaint form or to make the complaint under oath. On receipt of a complaint on a prescribed complaint form that an employer allegedly knowingly or intentionally employs an unauthorized alien, the Attorney General or district attorney shall investigate whether the employer has violated paragraph (a) of this subsection (4). If a complaint is received but is not submitted on a prescribed complaint form, the Attorney General or district attorney may investigate whether the employer has violated paragraph (a) of this subsection (4). This subsection (4)(b) shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form. The Attorney General or district attorney shall not investigate complaints that are based solely on race, color or national origin. A complaint that is submitted to a district attorney shall be submitted to the district attorney in the county in which the alleged unauthorized alien is or was employed by the employer. The county sheriff or any other local law enforcement agency may assist in investigating a complaint. When investigating a complaint, the Attorney General or district attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 USC Section 1373(c). A state, county or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to 8 USC Section 1373(c).
(ii) A person who knowingly files a false or frivolous complaint under this subsection is guilty of a misdemeanor.
(c) If, after an investigation, the Attorney General or district attorney determines that the complaint is not false or frivolous:
(i) The Attorney General or district attorney shall notify United States Immigration and Customs Enforcement of the unauthorized alien.
(ii) The Attorney General or district attorney shall notify the local law enforcement agency of the unauthorized alien.
(iii) The Attorney General shall notify the appropriate district attorney to bring an action pursuant to paragraph (d) of this subsection if the complaint was originally filed with the Attorney General.
(d) An action for a violation of paragraph (a) of this subsection (4) shall be brought against the employer by the district attorney in the county where the unauthorized alien employee is or was employed by the employer. A second violation of this section shall be based only on employment of an unauthorized alien who is or was employed by the employer after an action has been brought for a first violation of paragraph (a) of this subsection (4).
(e) For any action under this subsection, the court shall expedite the action, including assigning the hearing at the earliest practicable date.
(f) On a finding of a violation of paragraph (a) of this subsection (4).
(i) For a first violation as defined in this section, the court:
1. Shall order the employer to terminate the employment of all unauthorized aliens.
2. Shall order the employer to be subject to a three-year probationary period for the business location where the unauthorized alien performed work. During the probationary period, the employer shall make quarterly reports to the district attorney for each new employee who is hired by the employer at the business location where the unauthorized alien performed work stating the following: the name, address and social security number of each employee hired and the name, address and federal tax identification number for the employer. The district attorney shall redact all identifying information from the public record except for the employer's name and address.
3. Shall order the appropriate agencies to suspend all licenses described in subsection (7) of this section that are held by the employer for a period not less than ten (10) business days, subject to item 4 of this paragraph (f)(i). The court shall base its decision whether to suspend under this item 3 on any evidence or information submitted to it during the action for a violation of this subsection (4) and may consider the following factors, if relevant: the number of unauthorized aliens employed by the employer; any prior misconduct by the employer; the degree of harm resulting from the violation; whether the employer made good-faith efforts to comply with any applicable requirements; the duration of the violation; the role of the directors, officers or principals of the employer in the violation; and any other factors the court deems appropriate.
4. May order the minimum ten-day suspension under item 3 of this paragraph (f)(i) to occur at the completion of construction if the suspension would interrupt progress on a state, local government or federal construction project.
5. Shall send a copy of the court's order to the Attorney General.
(ii) For a second violation as described in this section, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer.
(g) The Attorney General shall maintain copies of court orders that are received pursuant to paragraph (f) of this subsection (4) and shall maintain a database of the employers and business locations that have a first violation of paragraph (a) of this subsection (4) and make the court orders available on the Attorney General's website.
(h) On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 USC Section 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 USC Section 1373(c).
(i) For the purposes of this section, proof of verifying the employment authorization of an employee through the status verification program creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien.
(j) (i) Every employer shall register with and utilize the status verification system to verify the federal employment authorization status of all newly hired employees and shall keep a record of the verification for the duration of the employee's employment or three (3) years, whichever is longer.
(ii) No contractor or subcontractor shall hire any employee unless the contractor or subcontractor registers and participates in the status verification system to verify the work eligibility status of all newly hired employees.
(iii) No contractor or subcontractor who enters into a contract with a public employer shall enter into such a contract or subcontract unless the contractor or subcontractor registers and participates in the status verification system to verify information of all newly hired employees.
( * * *k) The provision of this section shall
not apply to any contracts entered into on or before July 1, 2008.
( * * *l) (i) It shall be a
discriminatory practice for an employer to discharge an employee working in
Mississippi who is a United States citizen or permanent resident alien while
retaining an employee who the employing entity knows, or reasonably should have
known, is an unauthorized alien hired after July 1, 2008, and who is working in
Mississippi in a job category that requires equal skill, effort and
responsibility, and which is performed under similar working conditions, as
defined by 29 USC, Section 206(d)(1), as the job category held by the
discharged employee.
( * * *ii) An employing entity which, on the
date of the discharge in question, was enrolled in and used the status
verification system to verify the employment eligibility of its employees in
Mississippi hired after July 1, 2008, shall be exempt from liability,
investigation or suit arising from any action under this section.
( * * *iii) No cause of action for a
violation of this section shall lie under any other Mississippi law but shall
arise solely from the provisions of this section.
(5) Any employer that complies with the requirements of this section shall be held harmless by the Mississippi Department of Employment Security, provided the employer is not directly involved in the creation of any false documents, and provided that the employer did not knowingly and willfully accept false documents from the employee.
(6) (a) All third-party employers that conduct business in Mississippi shall register to do business in Mississippi with the Mississippi Department of Employment Security before placing employees into the workforce in Mississippi.
(b) Third-party employers shall provide proof of registration and any participation in the status verification system to any Mississippi employer with whom they do business.
(7) (a) State of Mississippi agencies and political subdivisions, public contractors and public subcontractors and private employers with two hundred fifty (250) or more employees shall meet verification requirements not later than July 1, 2008.
(b) Employers with at least one hundred (100) but less than two hundred fifty (250) employees shall meet verification requirements not later than July 1, 2009.
(c) Employers with at least thirty (30) but less than one hundred (100) employees shall meet verification requirements not later than July 1, 2010.
(d) All employers shall meet verification requirements not later than July 1, 2011.
(e) (i) Any employer violating the provisions of this section shall be subject to the cancellation of any state or public contract, resulting in ineligibility for any state or public contract for up to three (3) years, the loss of any license, permit, certificate or other document granted to the employer by any agency, department or government entity in the State of Mississippi for the right to do business in Mississippi for up to one (1) year, or both.
(ii) The contractor or employer shall be liable for any additional costs incurred by the agencies and institutions of the State of Mississippi, or any of its political subdivisions, because of the cancellation of the contract or the loss of any license or permit to do business in the state.
(iii) Any person
or entity penalized under this * * * paragraph shall have the right
to appeal to the appropriate entity * * * imposing sanctions or
to the circuit court of competent jurisdiction.
( * * *d) The Department of Employment
Security, * * * Department of Revenue, Secretary of State,
Department of Human Services, Board of Public Contractors, * * * the Attorney General and any other
agency, department or government entity shall have the authority to impose
sanctions or seek penalties authorized under this section * * *.
(8) (a) There shall be no liability under this section in the following circumstances:
(i) An employer who hires an employee through a state or federal work program that requires verification of the employee's social security number and provides for verification of the employee's lawful presence in the United States in an employment-authorized immigration status;
(ii) Any candidate for employment referred by the Mississippi Department of Employment Security, if the Mississippi Department of Employment Security has verified the social security number and provides for verification of the candidate's lawful presence in the United States in an employment-authorized immigration status; or
(iii) Individual homeowners who hire workers on their private property for noncommercial purposes, unless required by federal law to do so.
(b) (i) Compliance with the sections of this statute shall not exempt the employer from regulations and requirements related to any federal laws or procedures related to employers.
(ii) This section shall not be construed as an attempt to preempt federal law.
(c) (i) It shall be a felony for any person to accept or perform employment for compensation knowing or in reckless disregard that the person is an unauthorized alien with respect to employment during the period in which the unauthorized employment occurred. Upon conviction, a violator shall be subject to imprisonment in the custody of the Department of Corrections for not less than one (1) year nor more than five (5) years, a fine of not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00), or both.
(ii) For purposes of determining bail for persons who are charged under this section, it shall be a rebuttable presumption that a defendant who has entered and remains in the United States unlawfully is deemed at risk of flight for purposes of bail determination.
(d) It is a misdemeanor for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work or solicit work in a public place in this state.
SECTION 2. This act shall take effect and be in force from and after July 1, 2013.
