HB4198 S JUD AM #1 3-11
Fletcher 7835
The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
(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) "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.
The words defined in this section have the meanings given to them for purposes of this article unless the context clearly requires otherwise.
“Commissioner" means the labor commissioner or his or her designated agent.
“E-Verify” means the electronic verification of federal employment authorization program of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, PL 104-208, 8 U.S.C. § 1324a, and operated by the United States Department of Homeland Security, or its successor program.
“Public employer" means any department, board, bureau, agency, commission, division, office, council, or committee of the state government, public benefit corporation, public authority, or political subdivision of the state which employs an individual or individuals.
“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.
“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.
“Private employer” means a person or entity that transacts business in this state, is required to have a license issued by an agency, department, board, commission, or political subdivision of this state that issues licenses for the purposes of operating a business in this state, and employs one or more employees in this state who is required by federal law to complete and maintain federal employment eligibly verification form or documents.
“Records" means records that may be required by the commissioner of labor for the purposes of compliance with the provisions of this article.
“Unauthorized worker" means a person who does not have the legal right to be employed or is employed in violation of law.
(c)(b) 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)(c) 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 withthe provisions of §29A-3-1 et seq. 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.
(1) After hiring an employee, an employer may employ provisionally a new employee until the new employee’s work authorization has been verified pursuant to this section. An employer shall submit a new employee’s name and information for verification even if the new employee’s employment is terminated less than three business days after becoming employed: Provided, That an employer is not required to create an E-Verify case for an individual who accepts an offer of employment but never begins work for pay or fails to report for the first scheduled day of work.
(2) If E- Verify returns a tentative non-confirmation or other mismatch result, the employer shall provide the employee the notices and opportunity to contest required by federal law and shall follow the timelines and procedures prescribed by the E-Verify program. An employer may not take adverse action against an employee solely because of a tentative non-confirmation while the employee's opportunity to contest remains pending under federal law.
(3) An employer may not continue to employ an employee after receiving a final non-confirmation, a Department of Homeland Security no-show result, or other final federal determination that the employee is not authorized to work.
(4) All employers shall retain records required by this article for the period required by federal law for Form I-9 retention, and any E-Verify case confirmation or final case result for the same period.
(f) An employer is not required to comply with this section if:
(1) An employee was hired by the employer prior to the effective date of the amendment of this article; or
(2) It is a private employer who maintains majority ownership and has been employing individuals in West Virginia for fewer than five years; or
(3) It is a private employer who has employed fewer than an average of 50 full-time employees for the previous 12 months; or
(4) It is a private employer who is a sole proprietor.
(g) An employer may not employ any employee who meets the definition of unauthorized worker as defined in §21-1B-2 of this code. Failure to comply with requirements in §21-1B-3 of this code shall be presumed to be violations of this section.
(h) To assist private employers in understanding the requirements of this article, the commissioner shall send written notice of the requirements of this section to all West Virginia employers, and shall publish the information contained in the notice on its website.
(i) Compliance with this section shall not exempt the employer from regulations and requirements related to any federal laws or procedures related to employers.
(a) Any employer who knowingly and willfully fails to maintain records as required by §21-1B-4 of this code is guilty of a misdemeanor and, upon conviction thereof, shall be fined$100 for each offense $500 for each offense, and each day of noncompliance shall constitute a separate offense. Failure to keep records on each employee constitutes a separate offense.
(1) For a first offense, a fine of not less than $100 nor more than $1,000 for each violation;
(2) For a second offense, a fine of not less than $500 nor more than $5,000 for each violation;
(3) For a third or subsequent offense, a fine of not less than $1,000 nor more than $10,000, or confinement in jail for not less than thirty days nor more than one year, or both.
(c)(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 $2,500, or both.
(d)(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 §21-1B-4 of this code is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not more than one year or fined not more than $10,000, or both.
[Repealed.]
(a) If, upon examination of the record or records of conviction, the commissioner determines that an employerhas been convicted of a third or subsequent offense under subsection (b), section five of this article or has been convicted of the offenses described violated in subsection (c) or (d) of said section §21-1B-3 of this code, the commissioner may shall enter an order imposing the following disciplinary actions imposing disciplinary actions as provided in this section.
(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 disciplinary action and the revocation or suspension disciplinary action 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 disciplinary action 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 disciplinary action shall become effective untilten 10 days after receipt of a copy of the order.
(c) A final order entered under this section shall contain findings of fact and conclusions of law, the sanctions imposed, the period for compliance, and notice of the right to review.
(d) Upon a knowing and willful first violation of §21-1B-3 of this code by a private employer the commissioner shall, after providing notice and an opportunity to be heard pursuant to §29A-5-1 et seq. of this code, issue an order imposing a written warning to the employer. Any employer who is not in compliance with the provisions of this article within 14 days of the commissioner’s final order is subject to the sanctions set forth in §21-1B-7(e) of this code.
(e) Upon a knowing and willful second violation of §21-1B-3 of this code, the commissioner shall after providing notice and an opportunity to be heard pursuant to §29A-5-1 et seq. of this code:
(1) Publicly post notice of the violation on the division’s website; and
(2) Prohibit the employer from bidding on, entering into, or renewing
any contract with the state or any political subdivision thereof for a period of not less than two years.
(f) Upon a knowing and willful third violation of §21-1B-3 of this code, the commissioner shall after providing notice and an opportunity to be heard pursuant to §29A-5-1 et seq. of this code take action to permanently revoke the employer’s business license. The commissioner shall permanently suspend the business license of the employer upon making specific findings that the employer knowingly and willfully violated the provisions of this article and shall then order that any applicable governing body will permanently suspend the employer’s business license.
(d) For purposes of this section, a knowing and willful violation of §21-1B-3 of this code shall be considered a first, second, or third violation only by reference to prior violations of §21-1B-3 of this code that:
(1) Were finally determined by issuance an order imposing a written notice or final order of the commissioner issued pursuant to §29A-5-1 et seq. of this code. (2) Occurred within five years immediately preceding the date of the violation at issue, as determined in the applicable final order.
(e) An employer that demonstrates that it verified an employee’s authorization to work through E-Verify and that the employee was cleared to work by E-Verify has established an affirmative defense that the employer has not violated §21-1B-3 of this code with respect to the hiring of that employee. An employer that does not utilize E-Verify shall bear the full burden of compliance and enforcement under this article and shall not be entitled to any presumption, defense, or reduction in penalties otherwise available under state law.
(f) Notwithstanding any other provision of this code to the contrary, except as provided in §21-1B-3(f) of this code, an employer that does not utilize the federal E-Verify employment verification system at the time of hiring an employee shall not be eligible for any mitigation, reduction, warning, or discretionary leniency in the assessment of penalties, sanctions, or disciplinary actions imposed pursuant to this article.
(g) Any employer found to have knowingly and willfully violated §21-1B-3 of this code shall be ineligible, for a period of not less than three years from the date of the final order, to participate in any public-private partnership administered by the state or any political subdivision thereof.
Adopted
Rejected