Bill Text: OH HB286 | 2011-2012 | 129th General Assembly | Introduced

Ohio House Bill 286 (Prior Session Legislation)

Introduced

Bill Title: To adopt provisions related to the employment of unauthorized aliens.

Spectrum: Partisan Bill (Republican 14-0)

Status: (Introduced - Dead) 2011-06-29 - To Transportation, Public Safety & Homeland Security [HB286 Detail]

Download: Ohio-2011-HB286-Introduced.html

As Introduced

129th General Assembly

Regular Session

2011-2012

H. B. No. 286

Representatives Combs, Bubp

Cosponsors: Representatives Thompson, Adams, R., Adams, J., Brenner, Ruhl, Derickson, Johnson, Newbold, McClain, Maag, Young, Martin

A BILL

To amend section 4113.99 and to enact sections

4113.81 to 4113.88 of the Revised Code to adopt

provisions related to the employment of

unauthorized aliens.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 4113.99 be amended and sections	5
4113.81, 4113.82, 4113.83, 4113.84, 4113.85, 4113.86, 4113.87, and	6
4113.88 of the Revised Code be enacted to read as follows:	7

Sec. 4113.81. As used in sections 4113.81 to 4113.88 of the	8
Revised Code:	9

(A) "E-verify program" means the employment verification	10
pilot program as jointly administered by the United States	11
department of homeland security and the social security	12
administration or any of its successor programs.	13

(B) "Knowingly employ an unauthorized alien" means the	14
actions described in the "Immigration Reform and Control Act of	15
1986," 100 Stat. 3360, 8 U.S.C. 1324a. This term shall be	16
interpreted consistently with the "Immigration Reform and Control	17
Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a and any applicable	18
federal rules and regulations.	19

(C)(1) "License" means any agency permit, certificate,	20
approval, registration, charter, or similar form of authorization	21
that is required by law and that is issued by any agency for the	22
purposes of operating a business in this state.	23

(2) "License" includes all of the following:

(a) Articles of incorporation or organization under Title	25
XVII of the Revised Code;	26

(b) A certificate of limited partnership issued under section	27
1782.08 of the Revised Code;	28

(c) A license issued to a foreign corporation under section	29
1703.04 of the Revised Code.	30

(3) "License" does not include either of the following:

(a) Any permit or license issued under any environmental laws	32
as defined by section 3745.70 of the Revised Code;	33

(b) Any professional license.

(D) "Unauthorized alien" means an alien who does not have the	35
legal right or authorization under federal law to work in the	36
United States as described in the "Immigration Reform and Control	37
Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a.	38

Sec. 4113.82. (A)(1) No employer shall knowingly employ an	39
unauthorized alien.	40

(2) No employer purposefully shall employ an unauthorized	41
alien.	42

(3) No individual knowingly shall file a false and frivolous	43
complaint under section 4113.83 of the Revised Code.	44

(B) Every employer, after hiring an employee, shall verify	45
the employment eligibility of the employee through the e-verify	46
program.	47

(C) For purposes of division (A)(1) of this section, an	48
employer violates that division if the employer uses a contract,	49
subcontract, or other independent contractor agreement to obtain	50
the labor of an alien in this state and the employer knowingly	51
contracts with an alien the employer knows is an unauthorized	52
alien or with a person whom the employer knows employs or	53
contracts with an unauthorized alien to perform the labor.	54

(D) For purposes of division (A)(2) of this section, an	55
employer violates that division if the employer uses a contract,	56
subcontract, or other independent contractor agreement to obtain	57
the labor of an alien in this state and the employer purposefully	58
contracts with an alien the employer knows is an unauthorized	59
alien or with a person whom the employer knows employs or	60
contracts with an unauthorized alien to perform the labor.	61

Sec. 4113.83. The attorney general shall prescribe a	62
complaint form for a person to allege a violation of division	63
(A)(1) or (2) of section 4113.82 of the Revised Code. The attorney	64
general shall not require the complainant to list the	65
complainant's social security number on the complaint form or to	66
have the complaint form notarized. A complainant shall submit the	67
complaint to the attorney general or to the prosecuting attorney	68
of the county in which the alleged unauthorized alien is or was	69
employed by the employer. On receipt of a complaint on a	70
prescribed complaint form that an employer allegedly knowingly or	71
purposefully employs an unauthorized alien, the attorney general	72
or prosecuting attorney shall investigate whether the employer has	73
violated division (A)(1) or (2) of section 4113.82 of the Revised	74
Code, as alleged in the complaint. Nothing in this section shall	75
be construed to prohibit an individual from filing an anonymous	76
complaint on a form other than the prescribed complaint form. If	77
the attorney general or a prosecuting attorney receives a	78
complaint that is not submitted on a prescribed complaint form,	79
the attorney general or prosecuting attorney may, but is not	80
required to, investigate whether the employer has violated	81
division (A)(1) or (2) of section 4113.82 of the Revised Code as	82
alleged in the complaint. The attorney general or prosecuting	83
attorney shall not investigate complaints that are based solely on	84
race, color, or national origin.	85

The county sheriff or any other local law enforcement officer	86
may assist in investigating a complaint. When investigating a	87
complaint, the attorney general or prosecuting attorney shall	88
verify the work authorization of the alleged unauthorized alien	89
with the federal government pursuant to the federal "Omnibus	90
Consolidated Appropriations Act, 1997," 110 Stat. 3009, 8 U.S.C.	91
1373(c), as amended. An officer or employee of the state or a	92
political subdivision of the state shall not attempt to	93
independently make a final determination on whether an alien is	94
authorized to work in the United States.	95

Sec. 4113.84. (A) If, after an investigation conducted under	96
section 4113.83 of the Revised Code, the attorney general or	97
prosecuting attorney determines that the complaint is not false	98
and frivolous, the attorney general or prosecuting attorney shall	99
do all of the following, as applicable:	100

(1) Notify the United States department of homeland security	101
or its successor agency regarding the status of the unauthorized	102
alien;	103

(2) Notify the local law enforcement agency regarding the	104
status of the unauthorized alien;	105

(3) If the complaint was originally filed with the attorney	106
general, notify the appropriate prosecuting attorney to allow the	107
prosecuting attorney to bring an action pursuant to division (B)	108
of this section.	109

(B) If a prosecuting attorney of the county where an	110
unauthorized alien employee allegedly is or was employed by an	111
employer conducts an investigation under section 4113.83 of the	112
Revised Code and determines that reasonable evidence exists that	113
the employer violated division (A)(1) or (2) of section 4113.82 of	114
the Revised Code, or if that prosecuting attorney receives a	115
notice under division (A)(3) of this section, the prosecuting	116
attorney shall bring an action for a violation of division (A)(1)	117
or (2) of section 4113.82 of the Revised Code against the employer	118
in the court of common pleas of the county where the unauthorized	119
alien employee allegedly is or was employed by the employer. The	120
prosecuting attorney shall not bring an action against any	121
employer for any violation of division (A)(1) or (2) of section	122
4113.82 of the Revised Code that occurred prior to the effective	123
date of this section. A second violation of this section shall be	124
based only on any additional unauthorized aliens employed by the	125
employer after a previous action has been brought against an	126
employer for a violation of division (A)(1) or (2) of section	127
4113.82 of the Revised Code.	128

(C) For any action brought pursuant to this section, the	129
court shall expedite the action, including assigning the hearing	130
at the earliest practicable date.	131

Sec. 4113.85. (A) In an action brought pursuant to section	132
4113.84 of the Revised Code, for purposes of determining whether	133
an employee is an unauthorized alien, a court shall consider only	134
a determination with respect to that alien's immigration status	135
made by the federal government pursuant to the federal "Omnibus	136
Consolidated Appropriations Act, 1997," 110 Stat. 3009, 8 U.S.C.	137
1373(c), as amended. The federal government's determination	138
creates a rebuttable presumption of the alien's lawful status. The	139
court may take judicial notice of the federal government's	140
determination and may request the federal government to provide	141
automated or testimonial verification pursuant to the federal	142
"Omnibus Consolidated Appropriations Act, 1997," 110 Stat. 3009, 8	143
U.S.C. 1373(c), as amended.	144

(B) For purposes of section 4113.84 of the Revised Code,	145
proof of verifying the employment authorization of an employee	146
through the e-verify program creates a rebuttable presumption that	147
an employer did not knowingly or purposefully employ an	148
unauthorized alien.	149

(C) For purposes of section 4113.84 of the Revised Code, an	150
employer who establishes that the employer has complied in good	151
faith with the requirements of the federal "Immigration Reform and	152
Control Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a(b), as	153
amended, establishes an affirmative defense that the employer did	154
not knowingly or purposefully employ an unauthorized alien in	155
violation of division (A)(1) or (2) of section 4113.82 of the	156
Revised Code. An employer is considered to have complied with the	157
requirements of the federal "Immigration Reform and Control Act of	158
1986," 100 Stat. 3360, 8 U.S.C. 1324a(b), as amended,	159
notwithstanding an isolated, sporadic, or accidental technical or	160
procedural failure to meet the requirements, if a good faith	161
attempt was made to comply with the requirements of that act.	162

(D)(1) It is an affirmative defense to a violation of	163
division (A)(1) or (2) of section 4113.82 of the Revised Code that	164
an employer was entrapped. To claim entrapment, the employer shall	165
admit to the substantial elements of the violation through the	166
employer's testimony or by the use of other evidence. An employer	167
who asserts an entrapment defense has the burden of proving all of	168
the following elements by a preponderance of the evidence:	169

(a) The idea of committing the violation started with a peace	170
officer or an agent of the officer rather than with the employer.	171

(b) The peace officer or agent urged and induced the employer	172
to commit the violation.	173

(c) The employer was not predisposed to commit the violation	174
before the peace officer or agent urged and induced the employer	175
to commit the violation.	176

(2) An employer does not establish the defense of entrapment	177
if the employer was predisposed to violate division (A)(1) or (2)	178
of section 4113.82 of the Revised Code and the peace officer or	179
agent merely provided the employer with an opportunity to commit	180
the violation. A peace officer or an agent of the officer has not	181
entrapped an employer if the officer or agent merely used a ruse	182
or concealed the officer's or agent's identity. The conduct of a	183
peace officer or an agent of the officer may be considered in	184
determining if an employer has proven entrapment.	185

Sec. 4113.86. (A)(1) If a court, pursuant to an action	186
brought under section 4113.84 of the Revised Code, determines that	187
an employer has committed a first violation of division (A)(1) of	188
section 4113.82 of the Revised Code, the court shall do all of the	189
following:	190

(a) Order the employer to terminate the employment of all	191
unauthorized aliens;	192

(b) Order the employer to be subject to a three-year	193
probationary period for the business location where the	194
unauthorized alien performed work;	195

(c) Order the employer to file a signed affidavit of the type	196
described in division (A)(4) of this section with the prosecuting	197
attorney of the county where the violation occurred within three	198
business days after the order is issued.	199

(2) If a court pursuant to an action brought under section	200
4113.84 of the Revised Code determines that an employer has	201
committed a first violation of division (A)(1) of section 4113.82	202
of the Revised Code, the court may order the appropriate agencies	203
to suspend all licenses described in division (A)(4) of this	204
section that are held by the employer for a period not to exceed	205
ten business days. The court shall determine whether to suspend an	206
employer's licenses based upon any evidence or information	207
submitted to the court during the action and shall consider any of	208
the following factors, as applicable:	209

(a) The number of unauthorized aliens employed by the	210
employer;	211

(b) Any prior misconduct committed by the employer;

212

213

(d) Whether the employer made good faith efforts to comply	214
with any applicable requirements;	215

(e) The duration of the violation;

216

(f) The role of the directors, officers, or principals of the	217
employer in the violation;	218

(g) Any other factors the court considers appropriate.

219

(3) During the probationary period described in division	220
(A)(1)(b) of this section, the employer shall file quarterly	221
reports in the form provided in section 3121.892 of the Revised	222
Code with the prosecuting attorney of the county where the	223
violation occurred documenting each new employee who is hired by	224
the employer after the date the court determined the employer	225
violated division (A)(1) of section 4113.82 of the Revised Code	226
and who is employed at the business location where the	227
unauthorized alien performed work.	228

(4) The affidavit described in division (A)(1)(c) of this	229
section shall state that the employer has terminated the	230
employment of all unauthorized aliens employed by the employer in	231
this state and that the employer will not purposefully or	232
knowingly employ an unauthorized alien in this state. If the	233
employer fails to file the affidavit with the prosecuting attorney	234
within three business days after the date the order is issued, the	235
court shall order the appropriate agencies to suspend all licenses	236
described in this division held by the employer. On receipt of the	237
court's order and notwithstanding any other law to the contrary,	238
the appropriate agencies shall suspend the licenses according to	239
the court's order. The court shall send a copy of the court's	240
order to the attorney general, and the attorney general shall	241
maintain the copy pursuant to section 4113.88 of the Revised Code.	242

For the purposes of division (A)(4) of this section, a	243
license subject to suspension is any license held by the employer	244
specific to the business location where the unauthorized alien	245
performed work. If the employer does not hold a license specific	246
to the business location where the unauthorized alien performed	247
work, but a license is necessary to operate the employer's	248
business in general, any license held by the employer at the	249
employer's primary place of business is subject to suspension.	250

A license remains suspended until the employer files the	251
affidavit required under division (A)(1)(c) of this section with	252
the prosecuting attorney. Notwithstanding any other law to the	253
contrary, the appropriate agency shall reinstate the suspended	254
license upon the employer's filing of the affidavit with the	255
prosecuting attorney.	256

(B) For a second violation of division (A)(1) of section	257
4113.82 of the Revised Code, the court shall order the appropriate	258
agencies to permanently revoke all licenses that are held by the	259
employer specific to the business location where the unauthorized	260
alien performed work. If the employer does not hold a license	261
specific to the business location where the unauthorized alien	262
performed work, but a license is necessary to operate the	263
employer's business in general, the court shall order the	264
appropriate agencies to permanently revoke all licenses that are	265
held by the employer at the employer's primary place of business.	266
On receipt of the order and notwithstanding any other law, the	267
appropriate agencies shall immediately revoke the licenses.	268

(C) A violation is considered a first violation by an	269
employer at a business location if the violation did not occur	270
during a probationary period ordered by the court under this	271
section or section 4113.87 of the Revised Code for that employer's	272
business location. A violation is considered a second violation by	273
an employer at a business location if the violation occurred	274
during a probationary period ordered by the court under this	275
section or section 4113.87 of the Revised Code for that employer's	276
business location.	277

Sec. 4113.87. (A)(1) If a court, pursuant to an action	278
brought under section 4113.84 of the Revised Code, determines that	279
an employer has committed a first violation of division (A)(2) of	280
section 4113.82 of the Revised Code, the court shall do all of the	281
following:	282

(a) Order the employer to terminate the employment of all	283
unauthorized aliens;	284

(b) Order the employer to be subject to a five-year	285
probationary period for the business location where the	286
unauthorized alien performed work;	287

(c) Order the appropriate agencies to suspend all licenses	288
described in division (A)(4) of section 4113.86 of the Revised	289
Code held by the employer for a minimum of ten days;	290

(d) Order the employer to file a signed affidavit of the type	291
described in division (A)(4) of this section with the prosecuting	292
attorney of the county where the violation occurred within three	293
business days after the order is issued.	294

(2) During the probationary period described in division	295
(A)(1)(b) of this section, the employer shall file quarterly	296
reports in the form provided in section 3121.892 of the Revised	297
Code with the prosecuting attorney of each new employee who is	298
hired by the employer after the date the court determined the	299
employer violated division (A)(2) of section 4113.82 of the	300
Revised Code and who is employed at the business location where	301
the unauthorized alien performed work.	302

(3) The court shall base its decision on the length of the	303
suspension described in division (A)(1)(c) of this section on any	304
evidence or information submitted to it during the action and	305
shall consider the factors described in divisions (A)(2)(a) to (g)	306
of section 4113.86 of the Revised Code, as applicable.	307

(4) The affidavit described in division (A)(1)(d) of this	308
section shall state that the employer has terminated the	309
employment of all unauthorized aliens employed by the employer in	310
this state and that the employer will not purposefully or	311
knowingly employ an unauthorized alien in this state. If the	312
employer fails to file the affidavit with the prosecuting attorney	313
within three business days after the date the order is issued, the	314
court shall order the appropriate agencies to extend the	315
suspension of all licenses described in division (A)(4) of section	316
4113.86 of the Revised Code held by the employer until the	317
employer files the affidavit required under division (A)(1)(d) of	318
this section. On receipt of the court's order and notwithstanding	319
any other law to the contrary, the appropriate agencies shall	320
suspend the licenses according to the court's order. The court	321
shall send a copy of the court's order to the attorney general and	322
the attorney general shall maintain the copy pursuant to section	323
4113.88 of the Revised Code.	324

A license remains suspended until the employer files the	325
affidavit required under division (A)(1)(d) of this section with	326
the prosecuting attorney. Notwithstanding any other law to the	327
contrary, the appropriate agency shall reinstate the suspended	328
license upon the employer's filing of the affidavit with the	329
prosecuting attorney.	330

(B) For a second violation of division (A)(2) of section	331
4113.82 of the Revised Code, the court shall order the appropriate	332
agencies to permanently revoke all licenses that are held by the	333
employer specific to the business location where the unauthorized	334
alien performed work. If the employer does not hold a license	335
specific to the business location where the unauthorized alien	336
performed work, but a license is necessary to operate the	337
employer's business in general, the court shall order the	338
appropriate agencies to permanently revoke all licenses that are	339
held by the employer at the employer's primary place of business.	340
On receipt of the order and notwithstanding any other law, the	341
appropriate agencies shall immediately revoke the licenses.	342

(C) A violation is considered a first violation by an	343
employer at a business location if the violation did not occur	344
during a probationary period ordered by the court under this	345
section or section 4113.86 of the Revised Code for that employer's	346
business location. A violation is considered a second violation by	347
an employer at a business location if the violation occurred	348
during a probationary period ordered by the court under this	349
section or section 4113.86 of the Revised Code for that employer's	350
business location.	351

Sec. 4113.88. The attorney general shall do all of the	352
following:	353

(A) Maintain copies of all court orders received pursuant to	354
section 4113.86 or 4113.87 of the Revised Code;	355

(B) Maintain a database that includes the name of the	356
employer who has committed a first violation of division (A)(1) or	357
(2) of section 4113.82 of the Revised Code and the address of the	358
business location where that violation occurred;	359

(C) Make the court orders available on the web site	360
maintained by the attorney general.	361

Sec. 4113.99. (A) Whoever violates section 4113.15 of the	362
Revised Code is guilty of a misdemeanor of the first degree.	363

(B) Whoever violates section 4113.16, 4113.18, or 4113.19 of	364
the Revised Code is guilty of a minor misdemeanor.	365

(C) Whoever violates section 4113.17 of the Revised Code is	366
guilty of a minor misdemeanor for a first offense; for each	367
subsequent offense such person is guilty of a misdemeanor in the	368
fourth degree.	369