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H.B. 253
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7 LONG TITLE
8 General Description:
9 This bill modifies provisions related to labor to address verification of an individual's
10 eligibility under federal law to be employed.
11 Highlighted Provisions:
12 This bill:
13 . enacts the Employment of Unauthorized Aliens Act, including:
14 . defining terms;
15 . addressing construction, severability, and compliance with federal and state law;
16 . prohibiting the knowing or intentional employment of unauthorized aliens;
17 . requiring verification of employment eligibility;
18 . imposing verification requirements for economic development incentives;
19 . providing for voluntary registration;
20 . requiring certification by government entities of compliance with verification
21 requirements; and
22 . providing for enforcement; and
23 . repeals the Private Employer Verification Act.
24 Money Appropriated in this Bill:
25 None
26 Other Special Clauses:
27 This bill takes effect on July 1, 2011.
28 Utah Code Sections Affected:
29 ENACTS:
30 34A-12-101, Utah Code Annotated 1953
31 34A-12-102, Utah Code Annotated 1953
32 34A-12-103, Utah Code Annotated 1953
33 34A-12-201, Utah Code Annotated 1953
34 34A-12-202, Utah Code Annotated 1953
35 34A-12-203, Utah Code Annotated 1953
36 34A-12-204, Utah Code Annotated 1953
37 34A-12-205, Utah Code Annotated 1953
38 34A-12-301, Utah Code Annotated 1953
39 34A-12-302, Utah Code Annotated 1953
40 34A-12-303, Utah Code Annotated 1953
41 34A-12-304, Utah Code Annotated 1953
42 34A-12-305, Utah Code Annotated 1953
43 REPEALS:
44 13-47-101, as enacted by Laws of Utah 2010, Chapter 403
45 13-47-102, as enacted by Laws of Utah 2010, Chapter 403
46 13-47-103, as enacted by Laws of Utah 2010, Chapter 403
47 13-47-201, as enacted by Laws of Utah 2010, Chapter 403
48 13-47-202, as enacted by Laws of Utah 2010, Chapter 403
49 13-47-203, as enacted by Laws of Utah 2010, Chapter 403
50 13-47-204, as enacted by Laws of Utah 2010, Chapter 403
51
52 Be it enacted by the Legislature of the state of Utah:
53 Section 1. Section 34A-12-101 is enacted to read:
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56 34A-12-101. Title.
57 This chapter is known as the "Employment of Unauthorized Aliens Act."
58 Section 2. Section 34A-12-102 is enacted to read:
59 34A-12-102. Definitions.
60 As used in this chapter:
61 (1) "Agency" means:
62 (a) an agency, department, board, or commission of this state;
63 (b) a political subdivision that issues a license in this state; or
64 (c) an agency, department, board, or commission of a political subdivision described in
65 Subsection (1)(b).
66 (2) "Appropriate agency" means an agency that issues a license to an employer who is
67 subject to an order under Part 3, Enforcement.
68 (3) "Employ" means to hire an employee on or after July 1, 2011.
69 (4) (a) "Employee" means an individual who provides services or labor for an employer
70 in this state for wages or other remuneration.
71 (b) "Employee" does not include an independent contractor.
72 (5) (a) "Employer" means:
73 (i) the state;
74 (ii) a political subdivision of the state;
75 (iii) a self-employed person; and
76 (iv) a person that:
77 (A) transacts business in this state;
78 (B) is issued a license by an agency; and
79 (C) employs one or more employees in this state.
80 (b) For purposes of an independent contractor, "employer" means the independent
81 contractor and does not mean the person that uses the contract labor.
82 (6) "E-verify program" means the employment verification pilot program as jointly
83 administered by the United States Department of Homeland Security and the Social Security
84 Administration or any of its successor programs.
85 (7) (a) "Independent contractor" means a person who:
86 (i) carries on an independent business;
87 (ii) contracts to do a piece of work according to the person's own means and methods;
88 and
89 (iii) is subject to control only as to results.
90 (b) Whether a person entity is an independent contractor is determined on a
91 case-by-case basis through various factors, including whether the person:
92 (i) supplies the tools or materials;
93 (ii) makes services available to the general public;
94 (iii) works or may work for a number of clients at the same time;
95 (iv) has an opportunity for profit or loss as a result of labor or service provided;
96 (v) invests in the facilities for work;
97 (vi) directs the order or sequence in which the work is completed; or
98 (vii) determines the hours when the work is completed.
99 (c) "Independent contractor" includes an individual who performs services and is not
100 an employee pursuant to Section 3508, Internal Revenue Code.
101 (8) "Intentionally" is as defined in Section 76-2-103 .
102 (9) (a) "Knowingly employ an unauthorized alien" means an action described in 8
103 U.S.C. Sec. 1324a.
104 (b) "Knowingly employ an unauthorized alien" is to be interpreted consistently with 8
105 U.S.C. Sec. 1324a and applicable federal regulations.
106 (10) (a) "License" means a permit, certificate, approval, registration, charter, or similar
107 form of authorization that is:
108 (i) required by law; and
109 (ii) issued by any agency for the purposes of operating a business in this state.
110 (b) "License" includes:
111 (i) articles of incorporation or articles of organization under Title 16, Corporations, or
112 Title 48, Partnership; and
113 (ii) a license issued under Title 59, Revenue and Taxation.
114 (c) "License" does not include a professional license.
115 (11) "Private employer" means a person listed in Subsection (5)(a)(iii) or (iv).
116 (12) "Professional license" means a license, certificate, or registration issued under:
117 (a) Title 4, Utah Agricultural Code;
118 (b) Title 7, Financial Institutions Act;
119 (c) Title 19, Environmental Quality Code;
120 (d) Title 26, Utah Health Code;
121 (e) Title 31A, Insurance Code;
122 (f) Title 58, Occupational and Professional Licensing;
123 (g) Title 61, Securities Division - Real Estate Division;
124 (h) Title 73, Water and Irrigation; or
125 (i) a license, certificate, or registration similar to one described in this Subsection (12).
126 (13) "Social Security number verification service" means the program administered by
127 the Social Security Administration or any of its successor programs.
128 (14) "Unauthorized alien" is as defined in 8 U.S.C. Sec. 1324a(h)(3).
129 Section 3. Section 34A-12-103 is enacted to read:
130 34A-12-103. Construction -- Federal and state law compliance -- Severability.
131 (1) A term used in this chapter is to be construed to have the meaning given to the term
132 under federal laws regulating immigration.
133 (2) This chapter is to be implemented in a manner consistent with:
134 (a) federal laws regulating immigration;
135 (b) protecting the civil rights of all persons; and
136 (c) respecting the privileges and immunities of United States citizens.
137 (3) This chapter may not be implemented or construed to implement or establish the
138 REAL ID Act of 2005, Pub. L. 109-13, division B, 119 Stat. 302, including the use of a radio
139 frequency identification chip.
140 (4) This chapter may not be construed to require an employer to take any action that the
141 employer believes in good faith violates federal or state law.
142 (5) If any provision of this chapter or the application of this chapter to any person or
143 circumstance is for any reason held invalid, the remainder of the chapter and the application of
144 the provision to other persons or circumstances shall be given effect without the invalid
145 provision or application. The provisions of this chapter are severable.
146 Section 4. Section 34A-12-201 is enacted to read:
147
148 34A-12-201. Employing unauthorized alien.
149 (1) (a) An employer may not knowingly employ an unauthorized alien.
150 (b) When an employer uses a contract, subcontract, or other independent contractor
151 agreement to obtain the labor of an alien in this state, the employer may not knowingly contract
152 with an unauthorized alien or with a person who employs or contracts with an unauthorized
153 alien to perform the labor.
154 (2) (a) An employer may not intentionally employ an unauthorized alien.
155 (b) When an employer uses a contract, subcontract, or other independent contractor
156 agreement to obtain the labor of an alien in this state, the employer may not intentionally
157 contract with an unauthorized alien or with a person who employs or contracts with an
158 unauthorized alien to perform the labor.
159 Section 5. Section 34A-12-202 is enacted to read:
160 34A-12-202. Verification of employment eligibility.
161 (1) On and after July 1, 2011, a private employer employing 5 or more employees
162 within the state for each working day in each of 20 calendar weeks or more in the current or
163 preceding calendar year shall verify the employment eligibility of an employee through the
164 e-verify program after hiring the employee.
165 (2) A private employer shall keep a record of the verification required by Subsection
166 (1) for the longer of:
167 (a) the duration of the employee's employment; or
168 (b) at least three years from the date of verification.
169 Section 6. Section 34A-12-203 is enacted to read:
170 34A-12-203. Verification a requirement for economic development incentive.
171 (1) As used in this section:
172 (a) (i) "Economic development incentive" means a grant, loan, or performance-based
173 incentive from any government entity that is awarded on or after July 1, 2011.
174 (ii) "Economic development incentive" does not include an incentive provided under
175 Title 59, Revenue and Taxation.
176 (b) "Government entity" means:
177 (i) the state; or
178 (ii) a political subdivision of this state that receives and uses tax revenues.
179 (2) In addition to any other requirement for an employer to receive an economic
180 development incentive from a government entity, the employer shall register with and
181 participate in the e-verify program.
182 (3) (a) Before receiving the economic development incentive, the employer shall
183 provide proof to the government entity that the employer is registered with and is participating
184 in the e-verify program.
185 (b) If a government entity determines that the employer is not complying with this
186 section, the government entity shall notify the employer by certified mail of the government
187 entity's determination of noncompliance and the employer's right to appeal the determination in
188 accordance with Title 63G, Chapter 4, Administrative Procedures Act.
189 (c) On a final determination of noncompliance, the employer shall repay the money the
190 employer receives as an economic development incentive to the government entity within 30
191 days of the day on which a determination under this section becomes final.
192 Section 7. Section 34A-12-204 is enacted to read:
193 34A-12-204. Voluntary registration by private employer certifying participation
194 in verification.
195 (1) (a) A private employer may register with the Department of Commerce certifying
196 that the private employer is in compliance with Section 34A-12-202 .
197 (b) A private employer may register with the Department of Commerce under this
198 section regardless of whether the private employer is required to comply with Section
199 34A-12-202 .
200 (2) To register or renew a registration with the Department of Commerce under this
201 section, a private employer shall:
202 (a) file a registration statement with the Department of Commerce that certifies
203 compliance with Section 34A-12-202 ; and
204 (b) pay a fee established by the department in accordance with Section 63J-1-504 that
205 reflects the cost of registering employers under this section and publishing the list described in
206 Subsection (5).
207 (3) A registration under this section expires every two years on the anniversary of the
208 day on which the registration is filed with the Department of Commerce.
209 (4) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
210 Department of Commerce may make rules to provide for:
211 (a) the form of a registration statement under this section;
212 (b) the process of filing a registration statement under this section; and
213 (c) the process of renewing a registration statement under this section.
214 (5) The Department of Commerce shall publish electronically a list of private
215 employers who register under this section on a website accessible to the general public without
216 a charge.
217 Section 8. Section 34A-12-205 is enacted to read:
218 34A-12-205. Liability protections.
219 (1) An employer may not be held civilly liable under state law in a cause of action for
220 the employer's unlawful hiring of an unauthorized alien, as defined in 8 U.S.C. Sec. 1324a, if:
221 (a) the private employer complies with Section 34A-12-202 or 63G-11-103 ; and
222 (b) the information obtained in accordance with the e-verify program indicates that the
223 employee's federal legal status allows the employer to hire the employee.
224 (2) An employer may not be held civilly liable under state law in a cause of action for
225 the employer's refusal to hire an individual if:
226 (a) the employer complies with Section 34A-12-202 or 63G-11-103 ; and
227 (b) the information obtained in accordance with the e-verify program indicates that the
228 individual's federal legal status is that of an unauthorized alien as defined in 8 U.S.C. Sec.
229 1324a.
230 Section 9. Section 34A-12-301 is enacted to read:
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232 34A-12-301. Complaint process.
233 (1) The attorney general shall prescribe a complaint form for a person to allege a
234 violation of Section 34A-12-201 . The attorney general may not require a complainant to:
235 (a) list the complainant's Social Security number on the complaint form; or
236 (b) have a complaint form notarized.
237 (2) On receipt of a complaint on a prescribed complaint form alleging that an employer
238 has violated Section 34A-12-201 , the attorney general or county attorney shall investigate
239 whether the employer has violated Section 34A-12-201 .
240 (3) (a) If a complaint is received but is not submitted on a prescribed complaint form,
241 the attorney general or county attorney may investigate whether the employer has violated
242 Section 34A-12-201 .
243 (b) This Subsection (3) may not be construed to prohibit the filing of an anonymous
244 complaint that is not submitted on a prescribed complaint form.
245 (4) The attorney general or county attorney may not investigate a complaint that is
246 based solely on race, color, or national origin.
247 (5) If a person submits a complaint to a county attorney, the person shall submit the
248 complaint to the county attorney in the county in which the alleged unauthorized alien is or was
249 employed by the employer.
250 (6) A person who knowingly files a false and frivolous complaint under this section is
251 guilty of a class C misdemeanor.
252 Section 10. Section 34A-12-302 is enacted to read:
253 34A-12-302. Investigation process.
254 (1) The county sheriff or any other local law enforcement agency may assist in
255 investigating a complaint.
256 (2) (a) When investigating a complaint, the attorney general or county attorney shall
257 verify the work authorization of the alleged unauthorized alien with the federal government
258 pursuant to 8 U.S.C. Sec. 1373(c).
259 (b) The state or a county, city, or town official may not attempt to independently make
260 a final determination on whether an alien is authorized to work in the United States. An alien's
261 immigration status or work authorization status shall be verified with the federal government
262 pursuant to 8 U.S.C. Sec. 1373(c).
263 (3) If, after an investigation, the attorney general or county attorney determines that a
264 complaint is not false and frivolous:
265 (a) the attorney general or county attorney shall notify the United States Immigration
266 and Customs Enforcement of the unauthorized alien;
267 (b) the attorney general or county attorney shall notify the local law enforcement
268 agency of the unauthorized alien; and
269 (c) the attorney general shall notify the appropriate county attorney to bring an action
270 pursuant to Section 34A-12-303 if the complaint was originally filed with the attorney general.
271 Section 11. Section 34A-12-303 is enacted to read:
272 34A-12-303. Enforcement action.
273 (1) The county attorney in the county where an unauthorized alien employee is or was
274 employed by an employer shall bring an action against the employer for a violation of Section
275 34A-12-201 . A county attorney may not bring an action against any employer for a violation of
276 Section 34A-12-201 that occurs before July 1, 2011.
277 (2) (a) To determine whether an employee is an unauthorized alien, the court shall
278 consider only the federal government's determination pursuant to 8 U.S.C. Sec. 1373(c).
279 (b) The federal government's determination creates a rebuttable presumption of the
280 employee's lawful status. The court may:
281 (i) take judicial notice of the federal government's determination; and
282 (ii) request the federal government to provide automated or testimonial verification
283 pursuant to 8 U.S.C. Sec. 1373(c).
284 (3) For the purposes of this section, proof of verifying the employment authorization of
285 an employee through the e-verify program creates a rebuttable presumption that an employer
286 did not knowingly employ an unauthorized alien.
287 (4) (a) For the purposes of this section, an employer that establishes that the employer
288 has complied in good faith with the requirements of 8 U.S.C. Sec. 1324a(b) establishes an
289 affirmative defense that the employer did not knowingly employ an unauthorized alien.
290 (b) An employer is considered to have complied with the requirements of 8 U.S.C. Sec.
291 1324a(b), notwithstanding an isolated, sporadic, or accidental technical or procedural failure to
292 meet the requirements, if there is a good faith attempt to comply with the requirements.
293 (5) (a) It is an affirmative defense to a violation of Subsection 34A-12-201 (1) that an
294 employer is entrapped.
295 (b) To claim entrapment, an employer shall admit by the employer's testimony or other
296 evidence the substantial elements of the violation.
297 (c) An employer who asserts an entrapment defense has the burden of proving the
298 following by a preponderance of the evidence:
299 (i) the idea of committing the violation starts with a law enforcement officer or agent
300 rather than with the employer;
301 (ii) the law enforcement officer or agent urges and induces the employer to commit the
302 violation; and
303 (iii) the employer is not predisposed to commit the violation before the law
304 enforcement officer or agent urges and induces the employer to commit the violation.
305 (d) An employer does not establish entrapment if the employer is predisposed to
306 violate Subsection 34A-12-201 (1) and the law enforcement officer or agent merely provides
307 the employer with an opportunity to commit the violation.
308 (e) It is not entrapment for a law enforcement officer or agent to use a ruse or to
309 conceal the law enforcement officer's or agent's identity. The conduct of a law enforcement
310 officer or agent may be considered in determining if an employer proves entrapment.
311 Section 12. Section 34A-12-304 is enacted to read:
312 34A-12-304. Penalties.
313 If a court finds a violation of Section 34A-12-201 , the following applies:
314 (1) (a) For a first violation, the court shall order:
315 (i) the employer to terminate the employment of unauthorized aliens;
316 (ii) the employer to file a quarterly report in the form provided in Section 35A-7-104
317 with the county attorney for an employee who is hired by the employer at the business location
318 where the unauthorized alien performed work during:
319 (A) for a violation of Subsection 34A-12-201 (1), a three-year probationary period; or
320 (B) for a violation of Subsection 34A-12-201 (2), a five-year probationary period;
321 (iii) the employer to file a signed sworn affidavit with the county attorney within three
322 business days after the order is issued that states that the employer:
323 (A) has terminated the employment of any unauthorized alien in this state; and
324 (B) will not intentionally or knowingly employ an unauthorized alien in this state; and
325 (iv) the appropriate agencies to suspend each license described in Subsection (4) held
326 by the employer:
327 (A) for a violation of Subsection 34A-12-201 (1), if the employer fails to file a signed
328 sworn affidavit with the county attorney within three business days after the order is issued; or
329 (B) for a violation of Subsection 34a-12-201 (2), for a minimum of 10 days.
330 (b) For a first violation of Subsection 34A-12-201 (1), in addition to the penalties under
331 Subsection (1)(a), a court may order the appropriate agencies to suspend each license described
332 in Subsection (4) held by the employer for a period not to exceed 10 days.
333 (c) For a second violation, the court shall order an appropriate agency to permanently
334 revoke each license described in Subsection (4) held by the employer.
335 (d) On receipt of an order under this Subsection (1)(c) and notwithstanding any other
336 law, an appropriate agency shall immediately revoke a license according to the court's order.
337 (2) (a) On receipt of a court's order and notwithstanding any other law, an appropriate
338 agency shall suspend a license according to the court's order.
339 (b) A license that is suspended under Subsection (1)(a)(iv)(A) shall remain suspended
340 until the employer files a signed sworn affidavit with the county attorney.
341 (c) Notwithstanding any other law, for a license suspended under Subsection
342 (1)(a)(iv)(A), once an employer files an affidavit as required by Subsection (1)(a)(iii), an
343 appropriate agency shall reinstate a suspended license immediately.
344 (3) For purposes of Subsection (1)(a)(iv)(B) or (1)(b), a court shall base the court's
345 decision on the length of the suspension under this section on evidence or information
346 submitted to the court during the action for a violation of Section 34A-12-201 , and consider the
347 following factors, if relevant:
348 (a) the number of unauthorized aliens employed by the employer;
349 (b) prior misconduct by the employer;
350 (c) the degree of harm resulting from the violation;
351 (d) whether the employer made good faith efforts to comply with any applicable
352 requirements;
353 (e) the duration of the violation;
354 (f) the role of the directors, officers, or principals of the employer in the violation; and
355 (g) any other factor the court considers appropriate.
356 (4) (a) For the purposes of this section, a license that is subject to suspension or
357 revocation under this section is a license that is:
358 (i) held by an employer; and
359 (ii) specific to the business location where an unauthorized alien performs work.
360 (b) Notwithstanding Subsection (4)(a), if an employer does not hold a license specific
361 to the business location where an unauthorized alien performs work, but a license is necessary
362 to operate the employer's business in general, a license that is subject to suspension or
363 revocation under this section is a license that is held by the employer at the employer's primary
364 place of business.
365 (5) A court shall send a copy of the court's order to the attorney general and the
366 attorney general shall maintain the copy pursuant to Subsection (7).
367 (6) (a) A violation is considered:
368 (i) a first violation by an employer at a business location if the violation does not occur
369 during a probationary period ordered by the court under Subsection (1)(a) for that employer's
370 business location; or
371 (ii) a second violation by an employer at a business location if the violation occurs
372 during a probationary period ordered by the court under Subsection (1)(a) for that employer's
373 business location.
374 (b) A second violation of this section shall be based only on an unauthorized alien who
375 is or was employed by the employer after an action has been brought for a violation of Section
376 34A-12-201 .
377 (7) The attorney general shall:
378 (a) maintain a copy of a court order that is received pursuant to this section;
379 (b) maintain a database of the employers and business locations that have a first
380 violation of Subsection 34A-12-201 (1); and
381 (c) make a court order available on the attorney general's website.
382 Section 13. Section 34A-12-305 is enacted to read:
383 34A-12-305. Government entity verification enforcement.
384 (1) As used in this section:
385 (a) "Government entity" means:
386 (i) the state, including:
387 (A) a department;
388 (B) an institution;
389 (C) a board;
390 (D) a division;
391 (E) a bureau;
392 (F) an office;
393 (G) a commission;
394 (H) a committee; or
395 (I) an elected official; and
396 (ii) a political subdivision of the state, including:
397 (A) a county;
398 (B) a city;
399 (C) a town;
400 (D) a school district;
401 (E) a public transit district; or
402 (F) a special improvement district.
403 (b) "Verification requirement" means a requirement imposed on a government entity
404 under this chapter or Section 63G-11-103 .
405 (2) (a) The chief executive officer of a government entity shall in writing annually
406 certify on behalf of the government entity whether the government entity was in compliance
407 with the verification requirements in the previous calendar year.
408 (b) A chief executive officer who certifies that a government entity was in compliance
409 with the verification requirements for the previous calendar year knowing that the government
410 entity was not in compliance is guilty of violating Section 76-8-504 .
411 (3) If a government entity is otherwise required to prepare an annual report or audit, the
412 government entity shall include the certification required under Subsection (2) in the annual
413 report or audit.
414 (4) A government entity shall provide a copy of the certification to a person at the
415 request of the person.
416 Section 14. Repealer.
417 This bill repeals:
418 Section 13-47-101, Title.
419 Section 13-47-102, Definitions.
420 Section 13-47-103, Scope of chapter.
421 Section 13-47-201, Verification required for new hires.
422 Section 13-47-202, Liability protections.
423 Section 13-47-203, Voluntary registration by private employer certifying
424 participation in verification.
425 Section 13-47-204, Department to publish list of registered private employers.
426 Section 15. Effective date.
427 This bill takes effect on July 1, 2011.
Legislative Review Note
as of 1-26-11 11:58 AM