FIRST REGULAR SESSION
HOUSE COMMITTEE SUBSTITUTE NO. 2 FOR
94TH GENERAL ASSEMBLY
Reported from the Special Committee on Immigration March 30, 2007 with recommendation that House Committee Substitute No. 2 for House Bill No. 85 Do Pass. Referred to the Committee on Rules pursuant to Rule 25(21)(f).
D. ADAM CRUMBLISS, Chief Clerk
AN ACT
Relating to employment of illegal aliens, with a penalty provision, and an effective date.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section 1. As used in sections 1 to 3 of this act, the following terms shall have the following meanings:
(1) "Business entity", any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit. The term business entity shall include but not be limited to self-employed individuals, partnerships, corporations, contractors, and subcontractors. The term business entity shall include any business entity that possesses a business permit, license, or tax certificate issued by the state, any business entity that is exempt by law from obtaining such a business permit, and any business entity that is operating unlawfully without such a business permit. The term business entity shall not include a self-employed individual with no employees;
(2) "Contractor", a person, employer, or business entity that enters into an agreement to perform any service or work or to provide a certain product in exchange for valuable consideration. This definition shall include but not be limited to a subcontractor, independent contractor, contract employee, or a recruiting or staffing entity;
(3) "Division", the division of labor standards within the department of labor and industrial relations;
(4) "Employee", any person performing or applying for work or service of any kind or character for hire within the state of Missouri;
(5) "Employer", any person employing or seeking to employ any person for hire within the state of Missouri. Where there are two or more putative employers, any person or entity taking a business tax deduction for the employee in question shall be considered an employer of that person for purposes of sections 1 to 3 of this act;
(6) "Employment", the act of employing or state of being employed, engaged, or
hired to perform work or service of any kind or character within the state of Missouri;
(7) "Employment eligibility verification/basic pilot program", the electronic
verification of work authorization program of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, P.L. 104-208, Division C, Title IV, Subtitle A,
Section 403(a) (8 U.S.C. 1324a note), as amended and operated by the United States
Department of Homeland Security or its successor program;
(8) "Illegal alien", an alien who is not lawfully present in the United States, according to the terms of 8 U.S.C. 1101, et seq. The state of Missouri shall not conclude that a person is an illegal alien unless and until an authorized representative of the state of Missouri has verified with the federal government, under 8 U.S.C. 1373(c), that the person is an alien who is not lawfully present in the United States;
(9) "Unauthorized alien", an alien who does not have the legal right or authorization under federal law to work in the United States, as defined by 8 U.S.C. 1324a(h)(3);
(10) "Work", any job, task, employment, labor, personal services, or any other activity for which compensation is provided, expected, or due, including but not limited to all activities conducted by business entities.
Section 2. 1. No business entity shall employ, recruit, hire for employment, or continue to employ an unauthorized alien to perform work within the state of Missouri.
2. As a condition for the award of any state contract or grant to a business entity, or for any business entity using state resources, the business entity shall, by sworn affidavit and provision of documentation, affirm its enrollment and participation in the employment eligibility verification/basic pilot program. Every business entity shall also sign an affidavit affirming that it does not knowingly employ any person who is an unauthorized alien.
3. All state employers shall enroll and actively participate in the employment eligibility verification/basic pilot program.
4. An employer may enroll and participate in the employment eligibility verification/basic pilot program and such participating employer shall verify the employment eligibility of every employee in the employer's hire whose employment commences after the employer enrolls in the employment eligibility verification/basic pilot program. Any business entity that participates in such program shall have an affirmative defense that such business entity has not violated the provisions of sections 2 and 3 of this act, unless it is proven by clear and convincing evidence that the business entity had actual knowledge of the unauthorized status of the employee under the Immigration Reform and Control Act of 1986 (8 U.S.C. 1324a), or its successor.
Section 3. 1. The division shall enforce the requirements of sections 1 to 3 of this act.
2. An enforcement action shall be initiated by means of a written, signed complaint to the division submitted by any state official, business entity, or state resident. A valid complaint shall include an allegation which describes the alleged violator as well as the actions constituting the violation, and the date and location where such actions occurred. A complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.
3. Upon receipt of a valid complaint, the division shall, within ten business days, request identity information from the business entity regarding any persons alleged to be unauthorized aliens. Such request shall be made by certified mail. The division shall direct the secretary of state to suspend the business license of, and the secretary of state shall direct the applicable municipal or county governing body to suspend any applicable license of any business entity which fails, within ten business days after receipt of the request, to provide such information.
4. The division, after receiving the requested identity information from the business entity, shall submit identity data required by the federal government to verify, under 8 U.S.C. 1373, the immigration status of such persons, and shall provide the business entity with written notice of the results of the verification request:
(1) If the federal government notifies the division that an employee is authorized to work in the United States, the division shall take no further action on the complaint;
(2) If the federal government notifies the division that an employee is not authorized to work in the United States, the division shall proceed on the complaint as provided in subsection 5 of this section;
(3) If the federal government notifies the division that it is unable to verify whether an employee is authorized to work in the United States, the division shall take no further action on the complaint until a verification from the federal government concerning the status of the individual is received. At no point shall any state official attempt to make an independent determination of any alien's legal status without verification from the federal government under 8 U.S.C. 1373(c).
5. (1) If the federal government notifies the division that an employee is not authorized to work in the United States, and the employer of the unauthorized alien participates in the employment eligibility verification/basic pilot program, there shall be a rebuttable presumption that the employer has met the requirements for an affirmative defense under subsection 4 of section 2 of this act, and the employer shall comply with subsection 6 of this section.
(2) If the federal government notifies the division that an employee is not authorized to work in the United States, and the employer of the unauthorized alien does not participate in the employment eligibility verification/basic pilot program, the division shall, after notice and a hearing, determine whether the business entity knowingly violated sections 2 and 3 of this act:
(a) If the division finds that a business entity did not knowingly violate this act, the employer shall comply with subsection 6 of this section;
(b) If the division finds that a business entity knowingly violated this act, the division shall direct the secretary of state to suspend the business license of, and the secretary of state shall direct the applicable municipal or county governing body to suspend the business permit and any applicable licenses or exemptions of any business entity which fails to correct a violation of sections 2 and 3 of this act, within ten business days after notification of the violation by the division.
6. The correction of a violation with respect to the employment of an unauthorized alien shall include the following actions:
(1) (a) The business entity terminates the unauthorized alien's employment. If the business entity attempts to terminate the unauthorized alien's employment and such termination is challenged in a court of the state of Missouri, the ten business day period referenced in subsection 5 of this section shall be tolled while the business entity pursues the termination of the unauthorized alien's employment in such forum; or
(b) The business entity, after acquiring additional information from the employee, requests a secondary or additional verification by the federal government of the employee's authorization, under the procedures of the employment eligibility verification/basic pilot program. While this verification is pending, the ten business day period referenced in subsection 5 of this section shall be tolled; and
(2) A legal representative of the business entity submits, at an office designated by the division, a sworn affidavit stating that the violation has ended:
(a) The affidavit shall include a description of the specific measures and actions taken by the business entity to end the violation, and shall include the name, address, and other adequate identifying information for any unauthorized aliens related to the complaint;
(b) When two or more of the alleged unauthorized aliens were verified to be unauthorized aliens, the legal representative of the business entity shall submit to the division, in addition to the prescribed affidavit, documentation acceptable to the division which confirms that the business entity has enrolled in and is participating in the employment eligibility verification/basic pilot program.
7. The suspension of a business license or licenses under subsection 5 or 8 of this section shall terminate one business day after a legal representative of the business entity submits the affidavit and other documentation required under subsection 6 of this section.
8. For a second or subsequent violation of this act, the division shall direct the secretary of state to suspend the business license of, and the secretary of state shall direct the applicable municipal or county governing body to suspend the business permit and any applicable license or exemptions of the business entity for a period of ten days. The secretary of state shall reinstate the business permit and any applicable license or exemptions after the end of the suspension period, and upon receipt of the prescribed affidavit under subsection 6 and documentation which confirms that the business entity has enrolled in and is participating in the employment eligibility verification/basic pilot program. The division shall forward the affidavit, complaint, and associated documents to the Bureau of Immigration and Customs Enforcement of the United States Department of Homeland Security.
9. Any city or county governing body in the state of Missouri that fails to comply with directives from the secretary of state regarding the suspension of a business permit and any applicable license or exemptions of a business entity shall be ineligible for state funding.
10. Sections 1 to 3 of this act shall not be construed to deny any procedural mechanisms included in the employment eligibility verification/basic pilot program.
11. Any business entity subject to a complaint and subsequent enforcement under this act, or any employee of such a business entity, may challenge the enforcement of this section with respect to such entity or employee in the courts of the state of Missouri.
12. The determination of whether a worker is an unauthorized alien shall be made by the federal government, under 8 U.S.C. 1373(c). A determination of such status of an individual by the federal government shall create a rebuttable presumption as to that individual's status in any judicial proceedings brought under sections 2 and 3 of this act. The court may take judicial notice of any verification of an individual's status previously provided by the federal government and may request the federal government to provide automated or testimonial verification under 8 U.S.C. 1373(c).
13. (1) A general contractor will not be held liable under this section if:
(a) The general contractor verifies that all subcontractors and independent contractors hired by the general contractor have enrolled with the employment eligibility verification/basic pilot program; and
(b) The general contractor reasonably believes that the subcontractors and independent contractors hired by the general contractor have complied with this section.
(2) If a general contractor fails to comply with either of the provisions in subsection 1 of this section, he or she may be found liable for all violations of any subcontractor or independent contractor under the employ of the general contractor.
14. Compensation, whether in money or in kind or in services, provided to any unauthorized alien shall not be allowed as a business expense deduction from any income or business taxes of this state.
Section B. The provisions of sections 1, 2, and 3, of this act shall take effect on January 1, 2008.
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