H. B. 2893
(By Delegates Klempa, DeLong, Hutchins, Burdiss,
Shook, Varner, Ellem, Hamilton, Pethtel and Tucker)
[Introduced February 7, 2007; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §21-1B-6; and to
amend and reenact §21-1B-2, §21-1B-3 and §21-1B-5 of said
code, all relating to criminal penalties, fines, vicarious
liability, and disciplinary action including suspending and
revoking licenses of employers hiring or using unauthorized
workers; authorizing commissioner of department of labor
limited access to state agency information to confirm legal
status of workers.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §21-1B-6; and to amend
and reenact §21-1B-2, §21-1B-3 and §21-1B-5, all to read as
follows:
ARTICLE 1B. VERIFYING LEGAL EMPLOYMENT STATUS OF WORKERS.
§21-1B-2. Definitions.
(a) "Employer" means any individual, person, corporation,
department, board, bureau, agency, commission, division, office, company, firm, partnership, council or committee of the state
government, public benefit corporation, public authority or
political subdivision of the state or other business entity which
employs or seeks to employ an individual or individuals.
(b) "Commissioner" means the labor commissioner or his or her
designated agent.
(c) "Unauthorized worker" means a person who does not have the
legal right to be employed or is employed in violation of law.
(d) "Records" means records that may be required by the
Commissioner of Labor for the purposes of compliance with the
provisions of this article.
(e) "Third party" means an employer whether an agency,
commission, division, office, company, firm, partnership, council
or committee of the state government, public benefit corporation,
public authority or political subdivision of the state or other
business entity which does business with or is under contract with
another employer as defined in this section.
§21-1B-3. Unauthorized workers; employment prohibited.
(a) It is unlawful for any employer to employ, hire, recruit,
or refer, either for him or herself or on behalf of another, for
private or public employment within the state, an unauthorized
worker.
(b) It is unlawful for an employer to knowingly do business
with or otherwise be under contract with, an employer or third
party which employs, recruits, or uses an unauthorized worker.
(b) (c) Employers shall
be required to verify a prospective employee's legal status or authorization to work prior to employing
the individual or contracting with the individual for employment
services.
(c) (d) For purposes of this article, proof of legal status or
authorization to work includes, but is not limited to, a valid
social security card, a valid immigration or nonimmigration visa
including photo identification, a valid birth certificate, a valid
passport, a valid photo identification card issued by a government
agency, a valid work permit or supervision permit authorized by the
Division of Labor, a valid permit issued by the Department of
Justice or other valid document providing evidence of legal
residence or authorization to work in the United States.
(e) For purposes of enforcing the provisions of this article,
and notwithstanding any other provision of this code to the
contrary, the commissioner or his or her authorized representative
may access information maintained by any other state agency
including, but not limited to, the Bureau of Employment Programs
and the Department of Motor Vehicles, for the limited purpose of
confirming the validity of a worker's legal status or authorization
to work. The commissioner shall promulgate rules in accordance
with the provisions of chapter twenty-nine-a of this code to
safeguard against the release of any confidential or identifying
information that is not necessary for the limited purpose of
enforcing the provisions of this article.
(f) Upon a determination that an employer is employing,
recruiting or using an unauthorized worker, or otherwise violating the provisions of this section, the commissioner shall issue a
cease and desist order requiring the employer to immediately cease
all operations at the work site where the violation occurred. The
commissioner has the authority to amend or stay the application of
the order pending a hearing on the alleged violation if the
employer files a written application with the commissioner
demonstrating no violation of said section has occurred or the
alleged violation has ceased.
§21-1B-5. Penalties.
(a) The first violation of the provisions of this article is
a misdemeanor and, upon conviction thereof, an employer shall be
fined not less than one hundred dollars nor more than
one five
thousand dollars for each violation.
(b) Any employer who has previously been convicted of a
violation of this article and who thereafter violates the
provisions of this article shall be deemed to have knowingly
violated the provisions of this article and shall be guilty of a
misdemeanor felony to be confined in a state correctional facility
for no less than one year and no more than three years, and shall
be fined not less than
five hundred five thousand or more than
five
twenty thousand dollars for each violation.
(c) An employer who knows, or reasonably should know, that he
or she is doing business with or is otherwise under contract with
a third party who employs, recruits or uses an unauthorized worker,
will be liable for the actions of any and all violations
of
those
third parties which employ, recruit or use an unauthorized worker.
(d) Any employer who employs, recruits or uses a worker whose
legal status cannot be confirmed in accordance with subdivision
(b), section four of this article will be deemed to have knowingly
violated the provisions of this section and shall be subject to the
penalties as provided in subsection (b) of this section.
(e) An employer who is found to have purposefully or willfully
ignored the actions and legal status of a third party's employees
will be deemed to have knowingly violated the provisions of this
section and be subject to penalties in accordance with subdivision
2, subsection (b) of this section.
§21-1B-6. Suspension, revocation, other actions against licensure.
As to any employer who is found to have violated any provision
of this article, the commissioner has the power and authority to
impose the following disciplinary actions:
(1) Permanently revoke or file an action to revoke any
license held by the employer;
(2) Suspend a license or move for a suspension of any license
held by the employer for a specified period;
(3) Censure or reprimand the employer;
(4) Impose limitations or conditions on the professional
practice of the employer;
(5) Impose a probationary period requiring the employer to
report regularly to the commissioner on matters related to the
grounds for probation. The commissioner may withdraw probationary
status if the violations that require the sanction are remedied;
and
(6) Order an employer who has been found, after hearing, to
have violated any provision of this article, as a condition of
licensure, assurance that the employer has implemented policies
that prohibit the employment of unauthorized workers and that such
employment practices have ceased: Provided, That the commissioner
may remove this requirement for employers against whom no
complaints have been filed for a period of five continuous years.
NOTE: The purpose of this bill is to provide criminal
penalties, fines, vicarious liability, and disciplinary action
including suspending and revoking licenses of employers hiring or
using unauthorized workers; authorizing commissioner of department
of labor limited access to state agency information to confirm
legal status of workers.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§21-1B-6Type information is new; therefore, strike-throughs and underscoring
have been omitted.
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