Bill Text: OH HB286 | 2011-2012 | 129th General Assembly | 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
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Representatives Combs, Bubp
Cosponsors:
Representatives Thompson, Adams, R., Adams, J., Brenner, Ruhl, Derickson, Johnson, Newbold, McClain, Maag, Young, Martin
To amend section 4113.99 and to enact sections | 1 |
4113.81 to 4113.88 of the Revised Code to adopt | 2 |
provisions related to the employment of | 3 |
unauthorized aliens. | 4 |
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: | 24 |
(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: | 31 |
(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. | 34 |
(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 |
(c) The degree of harm resulting from the violation; | 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 |
(D) Whoever violates division (A)(3) of section 4113.82 of | 370 |
the Revised Code is guilty of a misdemeanor of the fourth degree. | 371 |
Section 2. That existing section 4113.99 of the Revised Code | 372 |
is hereby repealed. | 373 |