Bill Text: TX SB85 | 2017-2018 | 85th Legislature | Introduced
Bill Title: Relating to the verification of employment authorization by state contractors and state grant recipients, including the use of the federal E-verify program, and to authorization for the suspension of certain licenses held by private employers for the knowing employment of persons not lawfully present in this state; authorizing a fee.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2017-01-24 - Referred to Business & Commerce [SB85 Detail]
Download: Texas-2017-SB85-Introduced.html
85R2627 MTB/KSD-F | ||
By: Hall | S.B. No. 85 |
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relating to the verification of employment authorization by state | ||
contractors and state grant recipients, including the use of the | ||
federal E-verify program, and to authorization for the suspension | ||
of certain licenses held by private employers for the knowing | ||
employment of persons not lawfully present in this state; | ||
authorizing a fee. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. The heading to Chapter 2264, Government Code, is | ||
amended to read as follows: | ||
CHAPTER 2264. CERTAIN RESTRICTIONS ON [ |
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SUBSIDIES AND STATE CONTRACTS AND GRANTS | ||
SECTION 2. Section 2264.101, Government Code, is | ||
transferred to Subchapter B, Chapter 2264, Government Code, | ||
redesignated as Section 2264.054, Government Code, and amended to | ||
read as follows: | ||
Sec. 2264.054 [ |
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agency, local taxing jurisdiction, or economic development | ||
corporation, or the attorney general on behalf of the state or a | ||
state agency, may bring a civil action to recover any amounts owed | ||
to the public agency, state or local taxing jurisdiction, or | ||
economic development corporation under this subchapter [ |
||
(b) The public agency, local taxing jurisdiction, economic | ||
development corporation, or attorney general, as applicable, shall | ||
recover court costs and reasonable attorney's fees incurred in an | ||
action brought under Subsection (a). | ||
(c) A business is not liable for a violation of this | ||
subchapter [ |
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the business, or by a person with whom the business contracts. | ||
SECTION 3. The heading to Subchapter C, Chapter 2264, | ||
Government Code, is amended to read as follows: | ||
SUBCHAPTER C. VERIFICATION OF NEW EMPLOYEES BY STATE CONTRACTORS | ||
AND GRANT RECIPIENTS [ |
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SECTION 4. Subchapter C, Chapter 2264, Government Code, is | ||
amended by adding Sections 2264.1011, 2264.102, 2264.103, and | ||
2264.104 to read as follows: | ||
Sec. 2264.1011. DEFINITIONS. In this subchapter: | ||
(1) "E-verify program" has the meaning assigned by | ||
Section 673.001. | ||
(2) "State agency" has the meaning assigned by Section | ||
2103.001. | ||
Sec. 2264.102. VERIFICATION BY CONTRACTORS. (a) A state | ||
agency may not award a contract for goods or services within this | ||
state to a contractor unless the contractor: | ||
(1) registers with and participates in the E-verify | ||
program to verify information of all new employees; or | ||
(2) verifies the employment authorization status of | ||
all new employees by requiring each employee to provide an | ||
unexpired United States passport or: | ||
(A) one of the following documents: | ||
(i) an original or certified copy of a birth | ||
certificate issued by a bureau of vital statistics for a state; | ||
(ii) a Consular Report of Birth Abroad or | ||
Certificate of Birth Abroad issued by the United States Department | ||
of State; | ||
(iii) a Certificate of United States | ||
Citizenship issued by the federal Department of Homeland Security | ||
or the United States Department of State including an | ||
identification photograph; or | ||
(iv) a Certificate of Naturalization issued | ||
by the federal Department of Homeland Security or the United States | ||
Department of State including an identification photograph; and | ||
(B) one of the following documents: | ||
(i) an unexpired driver's license or | ||
identification card issued by a state; | ||
(ii) an unexpired federal, state, or local | ||
government identification card; or | ||
(iii) an unexpired military identification | ||
card for active duty, reserve, or retired personnel with an | ||
identification photograph. | ||
(b) Each contract with a state agency must include the | ||
following statement: | ||
"______________ (name of contractor) certifies that | ||
__________ (name of contractor) is not ineligible to receive this | ||
contract under Subchapter C, Chapter 2264, Government Code, and | ||
acknowledges that if this certification is inaccurate, the | ||
contractor may be barred from participating in state contracts." | ||
(c) If a state agency determines that a contractor was | ||
ineligible to have the contract awarded under Subsection (a), the | ||
state agency shall refer the matter to the comptroller for action. | ||
(d) Each state agency shall develop procedures for the | ||
administration of this section. | ||
Sec. 2264.103. BARRING FROM STATE CONTRACTS. (a) Using | ||
procedures prescribed under Section 2155.077, the comptroller | ||
shall bar a contractor from participating in state contracts if the | ||
comptroller determines that the contractor was awarded a contract | ||
in violation of Section 2264.102. | ||
(b) Debarment under this section is for a period of one | ||
year. | ||
Sec. 2264.104. VERIFICATION BY GRANT RECIPIENTS. (a) A | ||
state agency may not award a grant unless the grant recipient: | ||
(1) registers with and participates in the E-verify | ||
program to verify information of all new employees; or | ||
(2) verifies the employment authorization status of | ||
all new employees by requiring each employee to provide an | ||
unexpired United States passport or: | ||
(A) one of the following documents: | ||
(i) an original or certified copy of a birth | ||
certificate issued by a bureau of vital statistics for a state; | ||
(ii) a Consular Report of Birth Abroad or | ||
Certificate of Birth Abroad issued by the United States Department | ||
of State; | ||
(iii) a Certificate of United States | ||
Citizenship issued by the federal Department of Homeland Security | ||
or the United States Department of State including an | ||
identification photograph; or | ||
(iv) a Certificate of Naturalization issued | ||
by the federal Department of Homeland Security or the United States | ||
Department of State including an identification photograph; and | ||
(B) one of the following documents: | ||
(i) an unexpired driver's license or | ||
identification card issued by a state; | ||
(ii) an unexpired federal, state, or local | ||
government identification card; or | ||
(iii) an unexpired military identification | ||
card for active duty, reserve, or retired personnel with an | ||
identification photograph. | ||
(b) Each grant contract or agreement with a state agency | ||
must include the following statement: | ||
"______________ (name of grant recipient) certifies that | ||
__________ (name of grant recipient) is not ineligible to receive | ||
this grant under Subchapter C, Chapter 2264, Government Code, and | ||
acknowledges that if this certification is inaccurate, the grant | ||
may be terminated without further payment." | ||
(c) If a state agency determines that a grant recipient was | ||
ineligible to have the grant awarded under Subsection (a), the | ||
state agency shall notify the grant recipient in writing that the | ||
grant recipient must comply with Subsection (a) before the 31st day | ||
after the date the grant recipient is notified. | ||
(d) The state agency shall terminate the grant without | ||
further obligation to the grant recipient on the 31st day after the | ||
date the grant recipient is notified under Subsection (c) if, | ||
before that date, the grant recipient has not provided evidence | ||
that the grant recipient has complied with Subsection (a). | ||
(e) Each state agency shall develop procedures for the | ||
administration of this section. | ||
SECTION 5. Subtitle B, Title 2, Labor Code, is amended by | ||
adding Chapter 53 to read as follows: | ||
CHAPTER 53. EMPLOYMENT OF PERSONS NOT LAWFULLY PRESENT IN UNITED | ||
STATES | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 53.001. DEFINITIONS. In this chapter: | ||
(1) "Commission" means the Texas Workforce | ||
Commission. | ||
(2) "Employee" means an individual who is employed by | ||
an employer for compensation. The term includes an individual | ||
employed on a part-time basis. | ||
(3) "Employer" means a person, other than a | ||
governmental entity, who: | ||
(A) employs one or more employees; or | ||
(B) acts directly or indirectly in the interests | ||
of an employer in relation to an employee. | ||
(4) "Employment" means any service, including service | ||
in interstate commerce, that is performed for wages or under a | ||
contract of hire, whether written or oral or express or implied. | ||
The term does not include any service performed by an individual for | ||
wages if it is shown that the individual is free from control or | ||
direction in the performance of the service, both under any | ||
contract of service and in fact. | ||
(5) "License" means a license, certificate, | ||
registration, permit, or other authorization that: | ||
(A) is issued by a licensing authority; | ||
(B) is subject before expiration to renewal, | ||
suspension, revocation, forfeiture, or termination by a licensing | ||
authority; and | ||
(C) is required for a person to practice or | ||
engage in a particular business, occupation, or profession. | ||
(6) "Licensing authority" means a department, | ||
commission, board, office, or other agency of the state or a | ||
political subdivision of the state that issues or renews a license. | ||
(7) "Person not lawfully present" means a person who | ||
at the time of employment is neither an alien who is lawfully | ||
admitted for permanent residence in the United States under the | ||
federal Immigration and Nationality Act (8 U.S.C. Section 1101 et | ||
seq.) nor an individual who is authorized to be employed by that | ||
Act. | ||
Sec. 53.002. EMPLOYEE STATUS. An employer may not classify | ||
an individual performing services for the employer as an | ||
independent contractor instead of as an employee of the employer | ||
solely for the purpose of avoiding the requirements applicable to | ||
an employer under this chapter. | ||
Sec. 53.003. LICENSING AUTHORITIES SUBJECT TO CHAPTER. All | ||
licensing authorities are subject to this chapter. | ||
Sec. 53.004. RULES. The commission shall adopt rules for | ||
the administration of this chapter. | ||
SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON | ||
NOT LAWFULLY PRESENT | ||
Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF | ||
PERSON NOT LAWFULLY PRESENT; LICENSE SUSPENSION AUTHORIZED. (a) An | ||
employer may not knowingly employ a person not lawfully present. | ||
(b) An employer who violates Subsection (a) is subject to | ||
the suspension of each license held by the employer as provided by | ||
this chapter. | ||
Sec. 53.052. EXCEPTION. (a) In this section, "E-verify | ||
program" has the meaning assigned by Section 673.001, Government | ||
Code. | ||
(b) An employer has not violated Section 53.051(a) if the | ||
employer verified the employment authorization status of the person | ||
not later than the third business day after the commencement of the | ||
employee's employment through the E-verify program. | ||
SUBCHAPTER C. ADMINISTRATIVE PROVISIONS | ||
Sec. 53.101. FILING COMPLAINT. (a) A person who has reason | ||
to believe that an employer has violated Section 53.051(a) may file | ||
a complaint with the commission in accordance with this subchapter. | ||
(b) A complaint must: | ||
(1) be in writing on a form prescribed by the | ||
commission; and | ||
(2) be verified by the person making the complaint. | ||
(c) A person may file a complaint under this section: | ||
(1) in person at an office of the commission; or | ||
(2) by mailing the complaint to an address designated | ||
by the commission. | ||
Sec. 53.102. INVESTIGATION AND PRELIMINARY DISMISSAL ORDER | ||
OR REFERRAL ORDER. (a) On receipt of a complaint, an examiner | ||
employed by the commission shall investigate the complaint in an | ||
attempt to: | ||
(1) verify information regarding the immigration | ||
status of the relevant employee or employees of the employer | ||
alleged to have violated Section 53.051(a); and | ||
(2) determine whether a hearing should be conducted. | ||
(b) During the investigation, the employer alleged to have | ||
violated Section 53.051(a) shall specify all licenses held by the | ||
employer. | ||
(c) If the examiner determines that there is no substantial | ||
evidence that the employer violated Section 53.051(a), the examiner | ||
shall issue a preliminary dismissal order dismissing the complaint. | ||
(d) If the examiner determines that there is substantial | ||
evidence that the employer violated Section 53.051(a), the examiner | ||
shall refer the complaint to a hearing tribunal established under | ||
Section 53.103. | ||
(e) The examiner shall mail notice of the preliminary | ||
dismissal order or referral order to each party at that party's last | ||
known address, as reflected by commission records. | ||
Sec. 53.103. ESTABLISHMENT OF HEARING TRIBUNALS. The | ||
commission shall establish one or more impartial hearing tribunals | ||
to hear and decide complaints under this chapter. | ||
Sec. 53.104. REQUEST FOR HEARING ON PRELIMINARY DISMISSAL | ||
ORDER. (a) A party may request a hearing before a hearing tribunal | ||
to appeal a preliminary dismissal order made under Section | ||
53.102(c). | ||
(b) The request for the hearing must be made in writing not | ||
later than the 21st day after the date the examiner mails the notice | ||
of the preliminary dismissal order. | ||
Sec. 53.105. PRELIMINARY DISMISSAL ORDER FINAL IF HEARING | ||
NOT REQUESTED. If neither party requests a hearing to appeal a | ||
preliminary dismissal order made under Section 53.102(c) within the | ||
period prescribed by Section 53.104, the order becomes the final | ||
order of the commission for all purposes, and neither party is | ||
entitled to judicial review of the order under this subchapter. | ||
Sec. 53.106. NOTICE OF AND TIME FOR HEARING. (a) A notice | ||
regarding a hearing conducted under this subchapter must be mailed | ||
by the hearing tribunal not later than the 21st day after the date | ||
the referral order or request for the hearing is received by the | ||
commission. | ||
(b) As soon as practicable, but not later than the 45th day | ||
after the date a notice is mailed under Subsection (a), the tribunal | ||
shall conduct the hearing. | ||
Sec. 53.107. HEARING PROCEDURES. (a) A hearing conducted | ||
under this subchapter is subject to the rules and hearings | ||
procedures used by the commission in the determination of a claim | ||
for unemployment compensation benefits. | ||
(b) The hearing is not subject to Chapter 2001, Government | ||
Code. | ||
Sec. 53.108. ORDER AFTER HEARING. (a) After a hearing, if | ||
the hearing tribunal finds by clear and convincing evidence that | ||
the employer has violated Section 53.051(a), the hearing tribunal | ||
shall: | ||
(1) for a first violation, enter a written order: | ||
(A) requiring the employer to: | ||
(i) terminate the employment of each | ||
employee who is a person not legally present; and | ||
(ii) file with the hearing tribunal, within | ||
30 business days after the date the order is entered, a sworn | ||
affidavit stating that the employer has terminated the employment | ||
of each of those employees; and | ||
(B) notifying the employer that failure to file | ||
the affidavit required by Paragraph (A)(ii) will result in the | ||
suspension of the employer's licenses as provided by Subdivision | ||
(2); or | ||
(2) for a second or subsequent violation, or on a | ||
finding that an employer has failed to file an affidavit required by | ||
Subdivision (1)(A)(ii), enter a written order suspending for a | ||
period of one year any license held by the employer. | ||
(b) After a hearing, if the hearing tribunal does not find | ||
by clear and convincing evidence that the employer has violated | ||
Section 53.051(a), the hearing tribunal shall enter a written order | ||
dismissing the complaint. | ||
Sec. 53.109. NOTICE TO PARTIES AND FINALITY OF HEARING | ||
TRIBUNAL ORDER. (a) The hearing tribunal shall mail to each party to | ||
the hearing notice of the tribunal's decision. The notice shall be | ||
mailed to a party's last known address, as reflected by commission | ||
records. | ||
(b) The order of the hearing tribunal becomes final on the | ||
14th day after the date the order is mailed unless a further appeal | ||
to the commission is initiated as provided by this subchapter. | ||
Sec. 53.110. REMOVAL OR TRANSFER OF COMPLAINT PENDING | ||
BEFORE HEARING TRIBUNAL. (a) The commission by order may remove to | ||
itself or transfer to another hearing tribunal the proceedings on a | ||
complaint before a hearing tribunal. | ||
(b) The commission promptly shall mail to the parties to the | ||
affected hearing notice of the order under Subsection (a). | ||
(c) A quorum of the commission shall hear a proceeding | ||
removed to the commission under Subsection (a). | ||
Sec. 53.111. COMMISSION REVIEW OF HEARING TRIBUNAL ORDER. | ||
The commission may: | ||
(1) on its own motion: | ||
(A) affirm, modify, or set aside an order issued | ||
under Section 53.108 on the basis of the evidence previously | ||
submitted in the case; or | ||
(B) direct the taking of additional evidence; or | ||
(2) permit any of the parties affected by the order to | ||
initiate an appeal before the commission. | ||
Sec. 53.112. NOTICE OF COMMISSION ACTION TO PARTIES. (a) | ||
The commission shall mail to each party to an appeal under Section | ||
53.111 notice of: | ||
(1) the commission's decision; and | ||
(2) the parties' right to judicial review of the order. | ||
(b) The notice shall be mailed to a party's last known | ||
address, as reflected by commission records. | ||
Sec. 53.113. FINALITY OF COMMISSION ORDER. An order of the | ||
commission becomes final on the 14th day after the date the order is | ||
mailed unless before that date: | ||
(1) the commission by order reopens the appeal; or | ||
(2) a party to the appeal files a written motion for | ||
rehearing. | ||
Sec. 53.114. JUDICIAL REVIEW. (a) A party who has exhausted | ||
the party's administrative remedies under this chapter, other than | ||
a motion for rehearing, may bring a suit to appeal the order. | ||
(b) The suit must be filed not later than the 30th day after | ||
the date the final order is mailed to the party. | ||
(c) The commission and any other party to the proceeding | ||
before the commission must be made defendants in the suit. | ||
(d) The suit must be brought in the county of residence of | ||
the party seeking judicial review. If the party is not a resident | ||
of this state, the suit must be brought in the county in this state | ||
in which the employer has its principal place of business. | ||
(e) An appeal under this subchapter is by trial de novo with | ||
the substantial evidence rule being the standard of review in the | ||
manner as applied to an appeal from a final decision under Subtitle | ||
A, Title 4. | ||
Sec. 53.115. NOTICE TO LICENSING AUTHORITY OF FINAL ORDER | ||
SUSPENDING LICENSE. The commission shall promptly mail to the | ||
appropriate licensing authority a final order suspending a license | ||
entered under this chapter. | ||
SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES | ||
Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On receipt | ||
from the commission of a final order suspending a license, a | ||
licensing authority shall immediately determine if the authority | ||
has issued a license to the person named on the order and, if a | ||
license has been issued: | ||
(1) record the suspension of the license in the | ||
licensing authority's records; | ||
(2) report the suspension as appropriate; and | ||
(3) demand surrender of the suspended license if | ||
required by law for other cases in which a license is suspended. | ||
(b) A licensing authority shall implement the terms of a | ||
final order suspending a license without additional review or | ||
hearing. The authority may provide notice as appropriate to the | ||
license holder or to others concerned with the license. | ||
(c) A licensing authority may not modify, remand, reverse, | ||
vacate, or stay an order suspending a license issued under this | ||
chapter and may not review, vacate, or reconsider the terms of a | ||
final order suspending a license. | ||
(d) A person who is the subject of a final order suspending a | ||
license is not entitled to a refund for any fee or deposit paid to | ||
the licensing authority. | ||
(e) A person who continues to engage in the business, | ||
occupation, profession, or other licensed activity after the | ||
implementation of the order suspending a license by the licensing | ||
authority is liable for the same civil and criminal penalties | ||
provided for engaging in the licensed activity without a license or | ||
while a license is suspended that apply to any other license holder | ||
of that licensing authority. | ||
(f) A licensing authority is exempt from liability to a | ||
license holder for any act authorized under this chapter performed | ||
by the authority. | ||
(g) Except as provided by this chapter, an order suspending | ||
a license does not affect the power of a licensing authority to | ||
grant, deny, suspend, revoke, terminate, or renew a license. | ||
(h) An order issued under this chapter to suspend a license | ||
of a person applies to each license issued by the licensing | ||
authority subject to the order for which the person is eligible. | ||
The licensing authority may not issue or renew any other license for | ||
the person during the suspension period. | ||
Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing | ||
authority may charge a fee to a person who is the subject of an order | ||
suspending a license in an amount sufficient to recover the | ||
administrative costs incurred by the authority under this chapter. | ||
SECTION 6. Each state agency subject to Subchapter C, | ||
Chapter 2264, Government Code, as amended by this Act, shall | ||
develop the procedures required under Sections 2264.102 and | ||
2264.104, Government Code, as added by this Act, as applicable, not | ||
later than October 1, 2017. | ||
SECTION 7. Sections 2264.1011, 2264.102, 2264.103, and | ||
2264.104, Government Code, as added by this Act, apply only in | ||
relation to a: | ||
(1) contract for which the request for bids or | ||
proposals or other applicable expressions of interest is made | ||
public on or after the effective date of this Act; and | ||
(2) grant for which the notice of funds availability | ||
or of funding opportunity is made public on or after the effective | ||
date of this Act. | ||
SECTION 8. Chapter 53, Labor Code, as added by this Act, | ||
applies only to a violation that occurs on or after the effective | ||
date of this Act. | ||
SECTION 9. This Act takes effect September 1, 2017. |