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Key: Green = existing Code. Red = new code to be enacted
ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 3301
(By Delegates
Moye, Schoen, Klempa, Campbell,
Sumner, Caputo, D. Poling and Barker)
[Passed March 9, 2010; in effect ninety days from passage.]
AN ACT to amend and reenact §21-1B-5 and §21-1B-7 of the Code of
West Virginia, 1931, as amended, and to further amend said
code by adding thereto a new section, designated §21-1B-8, all
relating to employment of unauthorized workers; creating a
penalty for failure to maintain certain records; authorizing
the Commissioner to issue notices to produce records and
citations under certain circumstances; and requiring such
citations to be presented to a magistrate or circuit judge.
Be it enacted by the Legislature of West Virginia:
That §21-1B-5 and §21-1B-7of the Code of West Virginia, 1931,
as amended, be amended and reenacted, and that said code be amended
by adding a new section, designated §21-1B-8,
all to read as
follows:
ARTICLE 1B. VERIFYING LEGAL EMPLOYMENT STATUS OF WORKERS.
§21-1B-5. Penalties.
(a) Any employer who knowingly and willfully fails to maintain
records as required by section four of this article is guilty of a
misdemeanor and, upon conviction thereof, shall be fined one
hundred dollars for each offense. Failure to keep records on each
employee constitutes a separate offense.
(b) 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.
(c) 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.
(d) 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-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 (b),
section five of this article or has been convicted of the offenses
described in subsection (c) or (d) of said section, the
commissioner may enter an order imposing the following disciplinary
actions:
(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. The
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.
§21-1B-8. Citation for violation.
(a) If, upon inspection or investigation, the commissioner
believes that an employer has violated a provision of this
article, the commissioner shall issue a notice to produce records
or documents to the employer. Each notice shall be in writing and
shall describe with particularity the nature of the violation,
including a reference to the provision of this article alleged to
have been violated. The employer shall have up to seventy-two
hours, or for good cause shown to the commissioner, a greater
period of time, to produce employment status verification records.
(b) If after the time period allowed under subsection (a) of
this section the employer is unable to produce the required
documents to satisfy the commissioner that there is no violation of
this article, the commissioner may issue a citation to the
employer. Each citation shall be in writing on a standard form as
prescribed by the commissioner and shall describe with particularity the nature of the violation, including a reference to
the provision of this article alleged to have been violated.
Each
citation issued under this section or a copy or copies thereof
shall be prominently presented to a magistrate or circuit judge in
the county where the violation occurred.
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