Senate Bill No. 70
(Senators McKenzie, Bowman, Kessler, McCabe, Hall, Love, Wells and Hunter,
[Passed March 18, 2007; in effect ninety days from passage.]
AN ACT to amend and reenact §21-1B-2, §21-1B-3 and §21-1B-5 of the
Code of West Virginia, 1931, as amended; and to amend said
code by adding thereto two new sections, designated §21-1B-6
and §21-1B-7, all relating to employment of unauthorized
workers; defining terms; authorizing limited access to state
agency information to confirm legal status of workers;
establishing criminal penalties for violations of article;
denying tax deduction for certain employment expenses if
convicted of violating this article; authorizing suspension or
revocation of license; creating presumption for administrative
action against license upon conviction; and establishing
Be it enacted by the Legislature of West Virginia:
That §21-1B-2, §21-1B-3 and §21-1B-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said
code be amended by adding thereto two new sections, designated §21-
1B-6 and §21-1B-7, all to read as follows:
ARTICLE 1B. VERIFYING LEGAL EMPLOYMENT STATUS OF WORKERS.
(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
(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) "Knowingly" means, with respect to conduct or to a
circumstance described by a statute defining an offense, that a
person is aware by documentation or action that the person's
conduct is of that nature or that the circumstance exists. Failure
to request or review documentation of an employee's legal status or
authorization to work is deemed to be "knowingly".
(f) "License" means any permit, certificate, approval,
registration, charter or similar form of authorization that is
required by law and that is issued for the purpose of operating a
business in this state.
§21-1B-3. Unauthorized workers; employment prohibited.
(a) It is unlawful for any employer to knowingly 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 who is not duly authorized to be employed by
(b) 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
(c) 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.
(d) 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 Division 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.
(a) Any employer who knowingly violates the provisions of
section three of this article by employing, hiring, recruiting or
referring an unauthorized worker is guilty of a misdemeanor and,
upon conviction thereof, is subject to the following penalties:
(1) For a first offense, a fine of not less than one hundred
dollars nor more than one thousand dollars for each violation;
(2) For a second offense, a fine of not less than five hundred
dollars nor more than five thousand dollars for each violation;
(3) For a third or subsequent offense, a fine of not less than
one thousand dollars nor more than ten thousand dollars, or
confinement in jail for not less than thirty days nor more than one
year, or both.
(b) Any employer who knowingly and willfully provides false
records as to the legal status or authorization to work of any
employee to the commissioner or his or her authorized
representative is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in jail not more than one year or fined
not more than two thousand five hundred dollars, or both.
(c) Any employer who knowingly and willfully and with
fraudulent intent sells, transfers or otherwise disposes of
substantially all of the employer's assets for the purpose of
evading the record-keeping requirements of section four of this
article is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail not more than one year or fined not more
than ten thousand dollars, or both.
§21-1B-6. Denial of deductible business expense.
On or after the first day of January, two thousand eight, no
wages or remuneration for services paid to an unauthorized worker
of six hundred dollars ($600.00) or more per annum may be claimed
and allowed as a deductible business expense for state income tax
purposes by a taxpayer if the employer has been convicted under
this article of employing, hiring, recruiting or referring the
unauthorized worker. The commissioner shall notify the Department
of Revenue of any conviction of an employer under this article and
the department is to take the appropriate action against the
§21-1B-7. Suspension or revocation of license.
(a) If, upon examination of the record or records of
conviction, the commissioner determines that an employer has been
convicted of a third or subsequent offense under subsection (a),
section five of this article or has been convicted of the offenses
described in subsection (b) or (c) of said section, the
commissioner may enter an order imposing the following disciplinary
(1) Permanently revoke or file an action to revoke any license
held by the employer; or
(2) Suspend a license or move for a suspension of any license
held by the employer for a specified period;
(b) The order shall contain the reasons for the revocation or
suspension and the revocation or suspension periods. Further, the
order shall give the procedures for requesting a hearing.
person shall be advised in the order that because of the receipt of
the record of conviction by the commissioner a presumption exists
that the person named in the record of conviction is the person
named in the commissioner's order and this constitutes sufficient
evidence to support a revocation or suspension and that the sole
purpose for the hearing held under this section is for the person
requesting the hearing to present evidence that he or she is not
the person named in the record of conviction. A copy of the order
shall be forwarded to the person by registered or certified mail, return receipt requested. No revocation or suspension shall become
effective until ten days after receipt of a copy of the order.