Delegate Dillon moves to amend the committee substitute for House Bill 4198 on page 1, following the enacting clause, by striking everything thereafter and inserting in lieu thereof the following:

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) "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.

(b) "Commissioner" means the labor commissioner or his or her designated agent.

(c) "Unauthorized worker" means a person who is either not a natural born or legally naturalized citizen of the United States, and therefore ineligible to be employed in West Virginia.

(d) "Records" means records that may be required by the commissioner of labor for the purposes of compliance with the provisions of this article.

(g) "Employment Veriﬁcation" means the method established in this section of code for the purpose of determining that a potential employee is a legal citizen of the United States.

(h) "Employee" means any person directed, allowed, or permitted to perform labor or services of any kind by an employer.

(I) “High Risk Industry” means any industry identified and designated by the commissioner and approved by the legislature as having a significantly higher risk of employing unauthorized workers compared to other industries.

§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 law.

(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 services.

(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.

(b) Employers shall be required to verify a prospective employee's legal citizenship status and obtain valid documentation that confirms the legal citizenship status of the prospective employee prior to employing the individual or contracting with the individual for employment services. In cases when document validity is in question, employer shall request assistance in verification of documents from the Secretary of State. Secretary of State may request assistance from appropriate federal agencies to validate any document if authenticity of document is in question.

(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 voter registration card, a valid birth certificate, a valid passport, a valid photo identification card issued by a government agency when such agency requires proof of citizenship must be legally demonstrated to obtain such photo identification card, or other valid document providing evidence of legally verified citizenship of 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 §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.

(e)(1) All employers as deﬁned in section two or this article shall obtain proof of worker legal status under this article;

(2) After hiring an employee, an employer shall employ provisionally a new employee until the new employee’s citizenship has been veriﬁed pursuant to this section. An employer shall complete the verification process even if the new employee’s employment is terminated less than three business days after becoming employed.

(3) If a new employee’s citizenship is not veriﬁed by presenting appropriate valid documentation as provided in this article, a private employer may not employ, continue to employ, or reemploy the new employee.

(4) All employers shall keep a record of the veriﬁcation for the duration of the employee’s employment with the employer or three years, whichever is longer.

(f) An employer may not employ any employee who meets the deﬁnition of unauthorized worker as deﬁned in section three of this article. Failure to comply with requirements in sections two or three of this article shall be presumed to be violations of this section.

(g) For purposes of enforcing the provisions of this article, the Secretary of State shall make available to employers an office, agent, or designee to verify all state documents presented as proof of United States citizenship. The Secretary of State shall ensure that such office, agent, or designee is available during normal office hours, and that contact information is posted on the Secretary of State website and disseminated to employers at least once annually.

(i) For purposes of enforcing the provisions of this article, if the Secretary of State is unable to verify the legal status of a potential employee, the office or its agent or designee shall be authorized to contact the appropriate federal agency necessary to verify identity and legal citizenship status of prospective employee in question.

§21-1B-4. Record-keeping requirements; employer compliance.

Every employer, firm and corporation shall make such records of the persons he or she employs including records of proof of the legal status or authorization to work of all employees. Such records shall be preserved pursuant to the provisions of section five, article five-c of this chapter and shall be maintained at the place of employment. Pursuant to section three, article one of this chapter, such records shall be made available to the commissioner or his or her authorized representative for inspection and investigation as the commissioner deems necessary and appropriate for the purposes of determining whether any employer, firm or corporation has violated any provision of this article which may aid in the enforcement of the provisions of this article.

Every employer, firm and corporation shall make such records of the persons he or she employs including records of proof of the legal status or authorization to work of all employees. These records shall be preserved pursuant to the provisions of §21-5C-5 of this code and shall be maintained at the place of employment. Pursuant to §21-3-1 of this code, such the records shall be made available to the commissioner or his or her authorized representative for inspection and investigation as the commissioner deems necessary and appropriate for the purposes of determining whether any employer, firm or corporation has violated any provision of this article which may aid in the enforcement of the provisions of this article.

Nothing in this article may be construed as to abrogate an employer’s obligation to comply with federal immigration laws, including the completion and maintenance of federal employment eligibility veriﬁcation forms or documents.

§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 $100 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 $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) 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) 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 $10,000, or both.

(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. Failure to keep records on each employee constitutes a separate offense.

(b) Any employer who knowingly violates the provisions of §21-1B-3 of this code by employing, hiring, recruiting or referring an unauthorized worker is subject to the penalties set forth in §21-1B-7 of this code.

§21-1B-6. Denial of deductible business expense.

[Repealed.]

§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.

(a) If, upon examination of the record or records of conviction, the commissioner determines that an employer has been convicted of the offenses described in §21-1B-5(c) or §21-1B-5(d) of this code, 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;

(c) 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 a formal 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(d) of this section.

(d) Upon a knowing and willful second 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, post on the division’s website that the employer has violated the provisions of this article and bring a civil action in a court of competent jurisdiction to obtain an order prohibiting the employer from bidding for or entering into any contract with the state or any of its subdivisions for one year next after the date of the court’s order. Any employer who is not in compliance with the provisions of this article within 14 days of the order is subject to the sanctions set forth in §21-1B-7(e) of this section.

(e) Upon a knowing and willful third 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, bring a civil action in a court of competent jurisdiction to permanently revoke the business license of the employer, and the court 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.

(f) 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 an order of the commissioner issued pursuant to §29A-5-1 et seq. of this code or by a final order of a court of competent jurisdiction; and

(2) occurred within five years immediately preceding the date of the violation at issue, as determined in the applicable final order.

(g) An employer that demonstrates that it verified an employee’s legal status to work through compliance with this article 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.

§21-1B-9. Investigation by the Commissioner.

(a) The commissioner shall prescribe a complaint form for an individual to allege a violation of section four of this article. The commissioner may not require the complaint to list personal identifying information on the complaint form or to have the form notarized. A complainant shall submit the complaint to the commissioner. Except as prohibited by law, the commissioner shall investigate any violation alleged in a prescribed form to the commissioner.

(1) The commissioner may investigate a complaint form submitted by an anonymous complainant.

(2) The commissioner may not investigate any complaint ﬁled that is based on race, color, national origin, or any other discriminatory factor.

(b) If the commissioner conducts an investigation under this section and determines that reasonable evidence exists that an employer has violated a provision of this article, the commissioner shall take the following actions:

(1) Provide notice of the alleged violation to the employer and provide the employer with an opportunity to comment;

(2) If, upon notice, the commissioner determines that this is the employer’s ﬁrst violation and it constitutes only a single unveriﬁed or unauthorized worker, the commissioner may, upon the employer presenting proof that the violation has been corrected, issue a formal warning letter to the employer and close the matter.

(3) If, upon notice, the commissioner determines that this violation constitutes either a second violation for the employer or constitutes two or more unveriﬁed or unauthorized workers, the commissioner shall order the employer to pay a ﬁne of $2,500 for each violation.

(4) If, upon notice, the commissioner determines that this violation constitutes a third or subsequent violation for the employer the commissioner shall order the employer to pay a ﬁne of $5,000 for each violation and shall institute proceedings before a court of competent jurisdiction to suspend or revoke the employer’s license to transact business in this State.

(c) An employer who is assessed ﬁnes under this paragraph, may appeal that determination to a court of competent jurisdiction but is required to pay an appeal bond equal to the amount of the ﬁne. If the court ﬁnds for the employer, the bond will be released, and the violation will not count as a previous violation for purposes of a subsequent investigation.

(e) The commissioner shall bring proper action against an employer who does not comply with the order to pay the ﬁne and who does not appeal the assessment. If the court determines that the employer is liable, the court may assess double the ﬁne of what was ordered by the commissioner.

(f) The commissioner, in consultation with the state departments responsible for business licenses and for contracts, shall maintain a list of every employer assessed a ﬁne under this section. An employer shall remain on the list for a period not to exceed one year, and during that period, the employer may not be eligible to bid for or participate in any state contract. Following the year period, the employer shall be eligible to bid for and participate in state contracts if the employer ﬁles a sworn affidavit with the commissioner that one year or more has elapsed since the order described in this section and that the employer has not violated any provision of this bill during that period.

(g) The commissioner shall compile a list ofHigh Risk Industries for illegal workers and inspect such workplaces on a more frequent basis than general employers.

§21-1B-10. Good faith compliance.

For purposes of this article, an employer who, in good faith, veriﬁes the immigration status of a new employee pursuant to the provisions of this chapter shall be presumed to have complied with all of the provisions of this article.

§21-1B-11. Preemption of local ordinances.

A political subdivision of the state may not enact an ordinance or policy, whether written or oral, that limits or otherwise acts in contravention of the commissioner's ability to enforce the provisions of this article.

§21-1B-12. Civil protections for employers verifying employee status.

An employer who terminates an employee in order to comply with the provisions of this article may not be subject to a civil action for wrongful termination of the employee as provided by law.

§21-1B-13. Right of entry, inspection, and inspection plan.

The commissioner shall review federal and state data to identify industries statistically more likely to harbor unauthorized workers as defined under this article, and propose, subject to legislative approval, that those industries should be designated as “High Risk Industries.” Industries meeting these criteria shall be known in this article as “High Risk Industries.” Subsequent to legislative approval of the categories of High Risk Industries, the commissioner shall create a list of business locations within such industries and designate inspectors to make randomly selected, unannounced inspections of such business locations on a routine basis. Business locations not considered High Risk Industries shall also be subject to inspection, but at a lower frequency of inspection than High Risk Industries. Commissioner shall promulgate a plan for inspections including staffing, budgeting, and projected number of businesses to be subject to inspection. Such plan shall be subject to legislative approval. Subsequent to creation of plan, commissioner shall present annually to the Legislative Oversight Commission on Workforce Development and Labor Issues.

The commissioner, inspectors, agents, or designees, upon proper presentation of credentials to the owner, manager, or agent of the employer, may enter at reasonable times and have the right to question either publicly or privately any employer, owner, manager, or agent and the employees of the private employer and inspect, investigate, reproduce, or photograph original business records relevant to determining compliance with the provisions of this article.

Adopted

Rejected