View Bill Status
View Bill Text
View Statement of Purpose / Fiscal Impact
S1513......................................................by STATE AFFAIRS EMPLOYMENT - Amends and adds to existing law relating to employment of unauthorized aliens; to provide legislative findings; to provide criminal penalties for every person who falsely personates another; to define terms; to prohibit the employment of unauthorized aliens; to provide procedures; to provide penalties; to require employee verification when awarding contracts by the state or political subdivisions; to define a term; and to provide that the State Tax Commission shall provide notice to employers of the requirements not to employ unauthorized aliens. 03/24 Senate intro - 1st rdg - to printing 03/25 Rpt prt - to St Aff
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE SENATE SENATE BILL NO. 1513 BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO EMPLOYMENT OF UNAUTHORIZED ALIENS; PROVIDING LEGISLATIVE FINDINGS; 3 AMENDING SECTION 18-3001, IDAHO CODE, TO PROVIDE CRIMINAL PENALTIES FOR 4 EVERY PERSON WHO FALSELY PERSONATES ANOTHER, AND IN SUCH ASSUMED CHARAC- 5 TER, ATTEMPTS TO OBTAIN OR DOES OBTAIN EMPLOYMENT AND TO MAKE TECHNICAL 6 CORRECTIONS; AMENDING TITLE 44, IDAHO CODE, BY THE ADDITION OF A NEW CHAP- 7 TER 3, TITLE 44, IDAHO CODE, TO DEFINE TERMS, TO PROHIBIT THE EMPLOYMENT 8 OF UNAUTHORIZED ALIENS, TO PROVIDE PROCEDURES, TO PROVIDE PENALTIES, TO 9 PROVIDE THAT AN EMPLOYER DOES NOT HAVE TO TAKE ANY ACTION THAT THE 10 EMPLOYER BELIEVES IN GOOD FAITH WOULD VIOLATE FEDERAL OR STATE LAW, TO 11 PROVIDE DUTIES OF THE STATE OF IDAHO, TO PROVIDE A PERFORMANCE EVALUATION, 12 TO REQUIRE EMPLOYEE VERIFICATION WHEN AWARDING CONTRACTS BY THE STATE OR 13 POLITICAL SUBDIVISIONS AND TO DEFINE A TERM; AMENDING CHAPTER 30, TITLE 14 63, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 63-3035D, IDAHO CODE, TO 15 PROVIDE THAT THE STATE TAX COMMISSION SHALL PROVIDE NOTICE TO EMPLOYERS OF 16 THE REQUIREMENTS NOT TO EMPLOY UNAUTHORIZED ALIENS; PROVIDING SEVERABIL- 17 ITY; AND PROVIDING EFFECTIVE DATES. 18 Be It Enacted by the Legislature of the State of Idaho: 19 SECTION 1. LEGISLATIVE FINDINGS. The Legislature finds that this act com- 20 plies with the requirements of 8 U.S.C. section 1324a(h)(2) by discouraging 21 the knowing employment of unauthorized aliens through licensing and similar 22 laws. It is the intention of the Legislature to ensure that those who are 23 employed in Idaho are legally authorized to work in this state. The Legisla- 24 ture recognizes that there are industries in Idaho that are in need of tempo- 25 rary and seasonal workers, and that historically these workers have come to 26 the United States from other countries through legal guest worker programs. 27 While the Legislature encourages our congressional delegation to pursue devel- 28 opment of a guest worker program to meet the needs of Idaho employers, such a 29 program should not reward those who have already broken our laws nor provide 30 any form of amnesty. 31 SECTION 2. That Section 18-3001, Idaho Code, be, and the same is hereby 32 amended to read as follows: 33 18-3001. FALSE PERSONATION. (1) Every person who falsely personates 34 another, and in such assumed character, either: 351.(a) Becomes bail or surety for any party in any proceeding whatever, 36 before any court or officer authorized to take such bail or surety; or 372.(b) Verifies, publishes, acknowledges or proves in the name of another 38 person, any written instrument, with the intent that the same may be 39 recorded, delivered and used as true; or 403.(c) Does any act whereby, if it were done by the person falsely 41 personated, he might in any event, become liable to any suit or prosecu- 42 tion, or to pay any sum of money, or to incur any charge, forfeiture or 2 1 penalty, or whereby any benefit might accrue to the party personating, or 2 to any other person; 3 Is punishable by imprisonment in the county jail not exceeding two (2) years, 4 or by a fine not exceeding five thousand dollars ($5,000). 5 (2) Every person who falsely personates another and in such assumed char- 6 acter attempts to obtain or does obtain employment shall be guilty of a misde- 7 meanor. 8 SECTION 3. That Title 44, Idaho Code, be, and the same is hereby amended 9 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 10 ter 3, Title 44, Idaho Code, and to read as follows: 11 CHAPTER 3 12 EMPLOYMENT OF UNAUTHORIZED ALIENS 13 44-301. DEFINITIONS. In this chapter, unless the context otherwise 14 requires: 15 (1) "Agency" means any agency, department, board or commission of this 16 state or a county or city that issues a permit or license for purposes of 17 operating a business in this state. 18 (2) "Employee" means any person who performs services or labor for an 19 employer in the state for wages or other remuneration. For the purposes of 20 this chapter, "employee" shall not refer to a person performing casual domes- 21 tic labor in or around one's personal abode. For the purposes of this chapter 22 an employer-employee relationship does not exist between a contractor and the 23 employees of a subcontractor. 24 (3) "Employer" means an individual, corporation, limited liability com- 25 pany, partnership or other recognized legal entity that transacts business in 26 this state, that has a permit or license issued by an agency in this state and 27 employs one (1) or more individuals who perform employment in this state. 28 Employer includes the state of Idaho, any political subdivision of the state 29 and self-employed persons. 30 (4) "E-Verify," formerly known as the basic pilot/employment eligibility 31 verification program, is the internet-based system operated by the federal 32 department of homeland security in partnership with the social security admin- 33 istration that allows participating employers to electronically verify the 34 employment eligibility of their newly-hired employees. 35 (5) "Knowingly employ an unauthorized alien" means the actions described 36 in 8 U.S.C. section 1324a. This term shall be interpreted consistently with 8 37 U.S.C. section 1324a and any applicable federal rules and regulations. 38 (6) "Legal employment affidavit" means an affidavit that indicates that 39 an employer does not knowingly employ an unauthorized alien, that an employer 40 will not direct any other person to employ an unauthorized alien and that an 41 employer makes a good faith effort to comply with all federal and state laws 42 regarding the authorization for employment in the United States of every 43 employee who is employed by the employer in this state. 44 (7) "License" or "permit" means any agency permit, certificate, approval, 45 registration, charter or similar form of authorization that is required by law 46 and that is issued by any agency for the purposes of operating a business in 47 this state but does not include a license or permit issued by the department 48 of water resources or the department of environmental quality and does not 49 include any professional license issued pursuant to title 54, Idaho Code, or 50 the Idaho state bar association. 51 (8) "Unauthorized alien" means an alien who does not have the legal right 52 or authorization under federal law to work in the United States as defined in 53 8 U.S.C section 1324a(h)(3). 3 1 44-302. EMPLOYMENT OF UNAUTHORIZED ALIENS -- PROHIBITION -- LEGAL EMPLOY- 2 MENT AFFIDAVIT -- VIOLATION -- CLASSIFICATION. (1) An employer shall not 3 employ an alien knowing the alien is an unauthorized alien, as defined in 8 4 U.S.C. section 1324a(h)(3) with respect to such employment. 5 (2) On receipt of a complaint that an employer allegedly knowingly 6 employs an unauthorized alien, the attorney general or prosecuting attorney of 7 the county where the violation allegedly occurs shall investigate whether the 8 employer has violated the provisions of subsection (1) of this section. When 9 investigating a complaint, the attorney general or prosecuting attorney shall 10 verify the work authorization and immigration status of the alleged unautho- 11 rized alien with the federal government pursuant to 8 U.S.C. section 1373(c). 12 A state, county or local official shall not attempt to independently make a 13 final determination on whether an alien is authorized to work in the United 14 States. A person who knowingly files a false and frivolous complaint under 15 this subsection shall be guilty of a misdemeanor. A complaint that is based 16 upon the race, ethnicity or national origin of an employee shall not be acted 17 upon. 18 (3) If, after an investigation, the attorney general or prosecuting 19 attorney determined that the complaint is not frivolous: 20 (a) The attorney general or prosecuting attorney shall notify the United 21 States department of homeland security of the unauthorized alien. 22 (b) The attorney general or prosecuting attorney shall notify the county 23 sheriff or city police of the unauthorized alien. 24 (c) The attorney general shall notify the appropriate prosecuting attor- 25 ney for the purpose of bringing an action pursuant to subsection (4) of 26 this section if the complaint was originally filed with the attorney gen- 27 eral. 28 (4) An action for a violation of subsection (1) of this section shall be 29 brought against the employer by the prosecuting attorney in the county where 30 the unauthorized alien employee is employed. The prosecuting attorney shall 31 not bring an action against an employer for any violation of subsection (1) of 32 this section that occurs with respect to an employee's employment prior to 33 September 1, 2008. A second violation of the provisions of this section shall 34 be based only on an unauthorized alien who is employed by the employer after 35 an action has been brought for a violation of subsection (1) of this section. 36 (5) For any action in district court under this section, the court shall 37 expedite the action, including assigning the hearing, at the earliest practi- 38 cable date. 39 (6) On a finding of a violation of subsection (1) of this section: 40 (a) For a first violation of subsection (1) of this section, the court: 41 (i) Shall order the employer to terminate the employment of any 42 unauthorized alien whose unauthorized status has been confirmed with 43 finality by the federal government pursuant to 8 U.S.C. section 44 1373(c). 45 (ii) Shall order the employer to be subject to a three (3) year pro- 46 bationary period. During the probationary period the employer shall 47 file quarterly reports with the prosecuting attorney identifying each 48 new employee who is hired by the employer at the specific location 49 where the unauthorized alien performed work. 50 (iii) Shall order the employer to file a signed sworn affidavit with 51 the prosecuting attorney within three (3) business days after the 52 order is issued. The affidavit shall state that the employer has ter- 53 minated the employment of all unauthorized aliens and that the 54 employer does not knowingly employ an unauthorized alien. The court 55 shall order the appropriate agencies to suspend all licenses subject 56 to this chapter that are held by the employer if the employer fails 4 1 to file a signed sworn affidavit with the prosecuting attorney within 2 three (3) business days after the order is issued. All licenses that 3 are suspended under this paragraph shall remain suspended until the 4 employer files a signed sworn affidavit with the prosecuting attor- 5 ney. Notwithstanding any other provision of law, on filing of the 6 affidavit the suspended licenses shall be reinstated immediately by 7 the appropriate agencies for the purposes of this paragraph. The 8 licenses that are subject to suspension under this paragraph are all 9 licenses that are held by the employer and that are necessary to 10 operate the employer's business at the employer's business location 11 where the unauthorized alien performed work. If a license is not nec- 12 essary to operate the employer's business at the specific location 13 where the unauthorized alien performed work, but a license is neces- 14 sary to operate the employer's business in general, the licenses that 15 are subject to suspension under this subsection are all licenses that 16 are held by the employer at the employer's primary place of business. 17 On receipt of the court's order and notwithstanding any other law, 18 the appropriate agencies shall suspend the licenses according to the 19 court's order. The court shall send a copy of the court's order to 20 the attorney general and the attorney general shall maintain a copy 21 pursuant to subsection (7) of this section. 22 (b) For a second violation, during the probationary period the court: 23 (i) May order the appropriate agencies to suspend all licenses 24 described in subsection (6) (a) (iii) of this section that are held 25 by the employer for a period not to exceed ten (10) business days. 26 The court shall base its decision to suspend under this subsection, 27 on any evidence or information submitted to it during the action for 28 a violation of the provisions of this section and shall consider the 29 following factors, if relevant: 30 1. The number of unauthorized aliens employed by the employer; 31 2. Any prior misconduct by the employer; 32 3. The degree of harm resulting from the violation; 33 4. Whether the employer made good faith efforts to comply with 34 any applicable requirements; 35 5. The duration of the violation; 36 6. The role of the directors, officers or principals of the 37 employer in the violation; 38 7. Any other factors the court deems appropriate. 39 (c) For a third or subsequent violation of subsection (1) of this sec- 40 tion, during the probationary period the court shall order the appropriate 41 agencies to permanently revoke all licenses that are held by the employer 42 that are necessary to operate the employer's business at the employer's 43 business location where the unauthorized alien performed work. If a 44 license is not necessary to operate the performed work, but a license is 45 necessary to operate the employer's business in general, the court shall 46 order the appropriate agencies to permanently revoke all licenses that are 47 held by the employer at the employer's primary place of business. Upon 48 receipt of the order and notwithstanding any other provision of law to the 49 contrary, the appropriate agencies shall immediately revoke the licenses. 50 (7) The attorney general shall maintain copies of court orders that are 51 received pursuant to subsection (6) of this section and shall maintain a data- 52 base of the employers who have a first violation of subsection (1) of this 53 section and shall make the court orders available on the attorney general's 54 website. 55 (8) On determining whether an employee is an unauthorized alien, the 56 court shall defer to the federal government's determination pursuant to 8 5 1 U.S.C. section 1373(c). The federal government's determination creates a 2 rebuttable presumption of the employee's employment authorization or lack of 3 employment authorization. The court may take judicial notice of the federal 4 government's determination and may request the federal government to provide 5 automated or testimonial verification pursuant to 8 U.S.C. section 1373(c). On 6 or before September 1, 2008, the attorney general shall make publicly avail- 7 able on the attorney general's website the requirements of this chapter upon 8 employers. 9 (9) For the purpose of this section, proof that an employer verified the 10 employment authorization of an employee through E-Verify creates a rebuttable 11 presumption that an employer did not knowingly employ an unauthorized alien 12 with respect to that particular employee. 13 (10) For the purpose of this section, an employer who establishes that it 14 has complied in good faith with the requirements of 8 U.S.C. section 1324a 15 establishes an affirmative defense that the employer did not intentionally or 16 knowingly employ an unauthorized alien with respect to that particular 17 employee. 18 (11) In verifying the employment authorization of any individual with the 19 federal government, all state, county and local officials, including judges, 20 shall notify the individual in the event that the federal government responds 21 with a "tentative nonconfirmation" of the individual's employment authoriza- 22 tion. The contest procedure available to such an individual shall be allowed 23 to occur, and the necessary time period for contesting a tentative 24 nonconfirmation shall be allowed to run, consistent with applicable federal 25 statutes and regulations. 26 44-303. EMPLOYER ACTIONS -- FEDERAL LAW COMPLIANCE. The provisions of 27 this chapter shall not be construed to require an employer to take any action 28 that the employer believes in good faith would violate federal or state law. 29 44-304. VERIFICATION OF EMPLOYMENT ELIGIBILITY -- PUBLIC EMPLOYERS -- E- 30 VERIFY -- OFFICE OF PERFORMANCE EVALUATIONS. (1) Before hiring an employee, 31 the state of Idaho shall verify the employment authorization of the employee 32 through E-Verify. 33 (2) The director of the office of performance evaluations shall conduct a 34 performance audit that evaluates the use of E-Verify by this state pursuant to 35 subsection (1) of this section and shall include the following: 36 (a) The costs incurred by this state to verify the employment authoriza- 37 tion of employees through E-Verify; and 38 (b) The number of additional employees required by this state to verify 39 the employment authorization of employees through E-Verify; and 40 (c) A summary of results and any error rates that occurred when E-Verify 41 was used by this state. 42 (3) After September 1, 2009, every political subdivision of this state 43 shall verify the employment authorization of all newly-hired employees through 44 E-Verify. 45 44-305. AWARD OF CONTRACTS -- EMPLOYEE VERIFICATION -- DEFINITIONS. (1) 46 No state agency shall award a contract to any contractor or subcontractor that 47 provides services in this state unless the employment authorization of the 48 employees of the contractor or subcontractor that perform services in this 49 state has been verified by the contractor or subcontractor through E-Verify. 50 The provisions of this subsection only apply to contracts that are awarded on 51 and after October 1, 2008. 52 (2) After September 1, 2008, a political subdivision of this state shall 53 not award a contract to any contractor or subcontractor that provides services 6 1 in this state unless the employment authorization of the employees of the 2 contractor or subcontractor that perform the services in this state will be 3 verified by the contractor or subcontractor through E-Verify. 4 (3) Before a contract is awarded pursuant to this section, the contractor 5 shall provide to the procurement officer of the state or political subdivision 6 the E-Verify verification documents for all employees who will perform ser- 7 vices under the contract. 8 (4) For purposes of this section, "services" means the furnishing of 9 labor, time or effort in Idaho by a contractor or subcontractor. Services 10 include construction or maintenance of any structure, building or transporta- 11 tion facility or improvement of real property. 12 SECTION 4. That Chapter 30, Title 63, Idaho Code, be, and the same is 13 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 14 ignated as Section 63-3035D, Idaho Code, and to read as follows: 15 63-3035D. EMPLOYER NOTICE. On or before July 1, 2008, the state tax com- 16 mission shall provide a notice to every employer that is required to withhold 17 tax pursuant to chapter 30, title 63, Idaho Code. The notice shall explain the 18 requirements of chapter 3, title 44, Idaho Code, including the following: 19 (1) A new state law prohibits employers from knowingly employing an 20 unauthorized alien. 21 (2) For a first violation of this new state law during a three (3) year 22 period, the court shall order the appropriate licensing agencies to suspend 23 all licenses held by the employer unless the employer files a signed sworn 24 affidavit with the prosecuting attorney within three (3) business days. The 25 filed affidavit must state that the employer has terminated the employment of 26 all unauthorized aliens and that the employer will not knowingly employ an 27 unauthorized alien. A license that is suspended will remain suspended until 28 the employer files a signed sworn affidavit with the prosecuting attorney. A 29 copy of the court order will be made available on the attorney general's 30 website. 31 (3) For a second violation of this new state law, the court may order the 32 appropriate agencies to suspend all business licenses held by the employer for 33 up to ten (10) business days. 34 (4) For a third violation of this new state law, the court will order the 35 appropriate licensing agencies to permanently revoke all licenses that are 36 held by the employer. 37 (5) Proof of verifying the employment authorization of an employee 38 through E-Verify, as defined in section 44-301, Idaho Code, shall be a 39 defense of good faith. 40 (6) After September 1, 2008, every employer, after hiring an employee, is 41 required to verify the employment eligibility of the employee. 42 (7) Instructions for the employer on how to enroll in E-Verify, as 43 defined in section 44-301, Idaho Code. 44 SECTION 5. SEVERABILITY. The provisions of this act are hereby declared 45 to be severable and if any provision of this act or the application of such 46 provision to any person or circumstance is declared invalid for any reason, 47 such declaration shall not affect the validity of the remaining portions of 48 this act. 49 SECTION 6. Section 4 of this act shall be in full force and effect on and 50 after July 1, 2008. The remaining sections of this act shall be in full force 51 and effect on and after September 1, 2008.
STATEMENT OF PURPOSE
RS18074C2
This bill would prohibit Idaho employers from hiring persons who
are illegally in the United States.
Immigration issues are rightfully the responsibility of the federal
government. This legislation conforms with the federal Immigration
Reform and Control Act of 1986 (IRCA) where the federal government
provides criminal and monetary penalties to employers for hiring
persons who are illegally in the United States. The IRCA carves
out an area where the States can address this issue of illegal
alien employment. Specifically the IRCA states at 8 USC 1324
(h)(2):
"(2)Preemption. The provisions of this section preempt
any State or local law imposing civil or criminal
sanctions (other than through licensing and similar laws)
upon those who employ, or recruit or refer for a fee for
employment, unauthorized aliens."
If enacted, this legislation will allow for Idaho employers to have
their state, county or city licenses suspended for employing
illegal aliens. Professional licenses are excluded from the
legislation. For a first offense, a license will be suspended
until the employer signs an affidavit stating that the employer
will not hire an unauthorized alien in the future. If the employer
signs this affidavit within three (3) days of the court ruling, no
suspension of the license will take place.
For a second offense the license will be suspended for up to
ten(10) days. For a third offense the license will be permanently
revoked.
The legislation also provides a section on Legislative Findings and
makes it a misdemeanor for a person to falsely personate another in
order to seek employment.
FISCAL NOTE
This legislation, if enacted, will be enforced primarily by the
counties. The state attorney general will also have enforcement
authority. The legislation's financial impact to the state will be
that of the man hours required by the attorney general's office to
enforce the act. The state tax commission will also have to mail
out a notice to all Idaho employers.
Contact
Name: Representative Phil Hart
Phone: 208-332-1000
Representative Lawerence Denney
Senator Mike Jorgenson
Senator Monty Pearce
STATEMENT OF PURPOSE/FISCAL NOTE S 1513