Print Friendly SENATE BILL NO. 1513
– Employment, unauthorized aliens
SENATE BILL NO. 1513
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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 - 2008
IN 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:
35 1.(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
37 2.(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
40 3.(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
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-
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
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).
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
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-
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
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
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
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
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
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
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
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
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
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
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
"(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
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.
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.
Name: Representative Phil Hart
Representative Lawerence Denney
Senator Mike Jorgenson
Senator Monty Pearce
STATEMENT OF PURPOSE/FISCAL NOTE S 1513