Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-2009, Arizona Revised
Statutes, is amended to read:
START_STATUTE13-2009. Aggravated taking identity of another
person or entity; classification
A. A person commits aggravated taking the identity
of another person or entity if the person knowingly takes, purchases,
manufactures, records, possesses or uses any personal identifying information
or entity identifying information of either:
1. Five
Three or more other
persons or entities, including real or fictitious persons or entities, without
the consent of the other persons or entities, with the intent to obtain or use
the other persons' or entities' identities for any unlawful purpose or to cause
loss to the persons or entities whether or not the persons or entities actually
suffer any economic loss.
2. Another person or entity, including a real or
fictitious person or entity, without the consent of that other person or
entity, with the intent to obtain or use the other person's or entity's
identity for any unlawful purpose and causes another person or entity to suffer
an economic loss of three thousand dollars or more.
3. Another
person, including a real or fictitious person, with the intent to obtain
employment.
B. In an action for aggravated taking the identity
of another person or entity under subsection A, paragraph 1 of this section,
proof of possession out of the regular course of business of the personal
identifying information or entity identifying information of five three
or more other persons or entities may give rise to an inference
that the personal identifying information or entity identifying information of
the five three or more other persons or entities was
possessed for an unlawful purpose.
C. This section does not apply to a violation of
section 4‑241 by a person who is under twenty-one years of age.
D. Aggravated taking the identity of another person
or entity is a class 3 felony. END_STATUTE
Sec. 2. Title 23, chapter 2, Arizona Revised
Statutes, is amended by adding article 2, to read:
ARTICLE 2. EMPLOYMENT OF UNAUTHORIZED ALIENS
START_STATUTE23-211. Definitions
In this article, unless
the context otherwise requires:
1. "Agency" means any agency,
department, board or commission of this state or a county, city or town that
issues a license for purposes of operating a business in this state.
2. "Basic pilot program" means the
basic employment verification pilot program as jointly administered by the
United States department of homeland security and the social security
administration or its successor program.
3. "Employee" means any person who
performs employment services for an employer pursuant to an employment
relationship between the employee and employer.
4. "Employer" means any individual or type
of organization that transacts business in this state, that has a license
issued by an agency in this state and that employs one or more individuals who
perform employment services in this state. Employer includes this state, any
political subdivision of this state and self‑employed persons.
5. "Intentionally" has the same meaning
prescribed in section 13‑105.
6. "Knowingly employ an unauthorized
alien" means the actions described in 8 united states code section 1324a.
This term shall be interpreted consistently with 8 United States Code Section
1324a and any applicable federal rules and regulations.
7. "License":
(a) Means any agency permit,
certificate, approval, registration, charter or similar form of authorization
that is required by law and that is issued by any agency for the purposes of
operating a business in this state.
(b) Includes:
(i) Articles of incorporation under
title 10.
(ii) A certificate of partnership, a
partnership registration or articles of organization under title 29.
(iii) A
grant of authority issued under title 10, chapter 15.
(iv) Any transaction privilege tax
license.
(c) Does not include:
(i) Any license issued pursuant to
title 45 or 49 or rules adopted pursuant to those titles.
(ii) Any
professional license.
8. "Unauthorized alien" means an alien
who does not have the legal right or authorization under federal law to work in
the United States as described in 8 United States Code section 1324a(h)(3)END_STATUTE.
START_STATUTE23-212. Employment of unauthorized aliens;
prohibition; false and frivolous complaints; violation; classification; license
suspension and revocation
A. An
employer shall not intentionally employ an unauthorized alien or knowingly
employ an unauthorized alien.
B. On
receipt of a complaint that an employer allegedly intentionally employs an
unauthorized alien or knowingly employs an unauthorized alien, the attorney
general or county attorney shall investigate whether the employer has violated
subsection A. When investigating a complaint, the attorney general or county
attorney shall verify the work authorization of the alleged unauthorized alien
with the federal government pursuant to 8 United States Code section 1373(c). A state, county or local official shall
not attempt to independently make a final determination on whether an alien is
authorized to work in the United States. An alien's immigration
status or work authorization status shall be verified with the federal
government pursuant to 8 United States Code section 1373(c). A person who knowingly files a false and
frivolous complaint under this subsection is guilty of a class 3 misdemeanor.
C. If, after
an investigation, the attorney general or county attorney determines that the
complaint is not frivolous:
1. The
attorney general or county attorney shall notify the United States immigration
and customs enforcement of the unauthorized alien.
2. The attorney
general or county attorney shall notify the local law enforcement agency of the
unauthorized alien.
3. The
attorney general shall notify the appropriate county attorney to bring an
action pursuant to subsection d if the complaint was originally filed with the
attorney general.
D. An action
for a violation of subsection A shall be brought against the employer by the county attorney in the county where the unauthorized alien employee is employed. The county attorney shall not bring an action against any employer for any violation of
subsection A that occurs before January 1, 2008. A second violation of this
section shall be based only on an unauthorized alien who is employed by the
employer after an action has been brought for a violation of subsection A.
E. For any
action in superior court under this section, the court shall expedite the
action, including assigning the hearing at the earliest practicable date.
F. On a
finding of a violation of subsection A:
1. For a
first violation during a three year period that is a knowing violation of
subsection A, the court:
(a) Shall order the employer to
terminate the employment of all unauthorized aliens.
(b) Shall Order the employer to be
subject to a three year probationary period. During the probationary period
the employer shall file quarterly reports with the county attorney of each new
employee who is hired by the employer at the specific location where the
unauthorized alien performed work.
(c) Shall order the employer to file
a signed sworn affidavit with the county attorney within three business days
after the order is issued. The affidavit shall state that the employer has
terminated the employment of all unauthorized aliens and that the employer will
not intentionally or knowingly employ an unauthorized alien. The court shall
order the appropriate agencies to suspend all licenses subject to this
subdivision that are held by the employer if the employer fails to file a
signed sworn affidavit with the county attorney within three business days
after the order is issued. All licenses that are suspended under this
subdivision shall remain suspended until the employer files a signed sworn
affidavit with the county attorney. Notwithstanding any other law, on filing
of the affidavit the suspended licenses shall be reinstated immediately by the
appropriate agencies for the purposes of this subdivision, the licenses that
are subject to suspension under this subdivision are all licenses that are held
by the employer and that are necessary to operate the employer's business at
the employer's business location where the unauthorized alien performed work.
If a license is not necessary to operate the employer's business at the
specific location where the unauthorized alien performed work, but a license is
necessary to operate the employer's business in general, the licenses that are
subject to suspension under this subdivision are all licenses that are held by
the employer at the employer's primary place of business. On receipt of the
court's order and notwithstanding any other law, the appropriate agencies shall
suspend the licenses according to the court's order. The court shall send a
copy of the court's order to the attorney general and the attorney general
shall maintain the copy pursuant to subsection G.
(d) May order the appropriate
agencies to suspend all licenses described in subdivision (c) of this paragraph that are held by the
employer for not to exceed ten business days. The court shall base its
decision to suspend under this subdivision on any evidence or information
submitted to it during the action for a violation of this subsection and shall
consider the following factors, if relevant:
(i) The number of unauthorized
aliens employed by the employer.
(ii) Any prior misconduct by the
employer.
(iii) The degree of harm resulting
from the violation.
(iv) Whether the employer made good
faith efforts to comply with any applicable requirements.
(v) The duration of the violation.
(vi) The role of the directors,
officers or principals of the employer in the violation.
(vii) Any other factors the court
deems appropriate.
2. For a
first violation during a five year period that is an intentional violation of
subsection A, the court shall:
(a) Order the employer to terminate
the employment of all unauthorized aliens.
(b) Order the employer to be subject
to a five year probationary period. During the probationary period the
employer shall file quarterly reports with the county attorney of each new
employee who is hired by the employer at the specific location where the
unauthorized alien performed work.
(c) Order the appropriate agencies
to suspend all licenses, described in subdivision (d) of this paragraph that are held by the
employer for a minimum of ten days. The court shall base its decision on the
length of the suspension under this subdivision on any evidence or information
submitted to it during the action for a violation of this subsection and shall
consider the following factors, if relevant:
(i) The number of unauthorized
aliens employed by the employer.
(ii) Any prior misconduct by the
employer.
(iii) The degree of harm resulting
from the violation.
(iv) Whether the employer made good
faith efforts to comply with any applicable requirements.
(v) The duration of the violation.
(vi) The role of the directors,
officers or principals of the employer in the violation.
(vii) Any other factors the court
deems appropriate.
(d) Order the employer to file a
signed sworn affidavit with the county attorney. The affidavit shall state
that the employer has terminated the employment of all unauthorized aliens and
that the employer will not intentionally or knowingly employ an unauthorized
alien. All licenses that are suspended under this subdivision shall remain
suspended until the employer files a signed sworn affidavit with the county attorney. For the purposes of this subdivision, the licenses that are subject to
suspension under this subdivision are all licenses that are held by the
employer and that are necessary to operate the employer's business at the
employer's business location where the unauthorized alien performed work. If a
license is not necessary to operate the employer's business at the specific
location where the unauthorized alien performed work, but a license is
necessary to operate the employer's business in general, the licenses that are
subject to suspension under this subdivision are all licenses that are held by
the employer at the employer's primary place of business. On receipt of the
court's order and notwithstanding any other law, the appropriate agencies shall
suspend the licenses according to the court's order. The court shall send a
copy of the court's order to the attorney general and the attorney general
shall maintain the copy pursuant to subsection G.
3. For a
second violation of subsection A during the period of probation, the court
shall order the appropriate agencies to permanently revoke all licenses that
are held by the employer and that are necessary to operate the employer's
business at the employer's business location where the unauthorized alien performed
work. If a license is not necessary to operate the employer's business at the
specific location where the unauthorized alien performed work, but a license is
necessary to operate the employer's business in general, the court shall order
the appropriate agencies to permanently revoke all licenses that are held by
the employer at the employer's primary place of business. On receipt
of the order and notwithstanding any other law, the appropriate agencies shall
immediately revoke the licenses.
G. The
attorney general shall maintain copies of court orders that are received
pursuant to subsection F and shall maintain a database of the employers who
have a first violation of subsection A and make the court orders available on
the attorney general's website.
H. On
determining whether an employee is an unauthorized alien, the court shall
consider only the federal government's determination pursuant to 8 United
States Code section 1373(c).
The federal government's determination creates a rebuttable presumption of the
employee's lawful status. The court may take judicial notice of the federal
government's determination and may request the federal government to provide
automated or testimonial verification pursuant to 8 United States Code section
1373(c).
I. For the
purposes of this section, proof of verifying the employment authorization of an
employee through the basic pilot program creates a rebuttable presumption that
an employer did not intentionally employ an unauthorized alien or knowingly
employ an unauthorized alien.
J. For the
purposes of this section, an employer who establishes that it has complied in
good faith with the requirements of 8 United States Code section 1324b establishes an affirmative defense that the
employer did not intentionally or knowingly employ an unauthorized alien. END_STATUTE
START_STATUTE23-213. Employer actions; federal or state law
compliance
This article shall not
be construed to require an employer to take any action that the employer
believes in good faith would violate federal or state law. END_STATUTE
START_STATUTE23-214. Verification of employment eligibility;
basic pilot program
After December 31,
2007, every employer, after hiring an employee, shall verify the employment
eligibility of the employee through the basic pilot program. END_STATUTE
Sec. 3. Employer notice
On or before October 1, 2007, the department of revenue shall
provide a notice to every employer that is required to withhold tax pursuant to
title 43, chapter 4, Arizona Revised Statutes. The notice shall explain the
requirements of title 23, chapter 2, article 2, Arizona Revised Statutes, as
added by this act, including the following:
1. A new state law prohibits employers from intentionally
employing an unauthorized alien or knowingly employing an unauthorized alien.
2. For a first violation of this new state law
during a three year period that is a knowing violation, the court will order
the appropriate licensing agencies to suspend all licenses held by the employer
unless the employer files a signed sworn affidavit with the county attorney
within three business days. The filed affidavit must state that the employer
has terminated the employment of all unauthorized aliens and that the employer
will not intentionally or knowingly employ an unauthorized alien. A license
that is suspended will remain suspended until the employer files a signed sworn
affidavit with the county attorney. A copy of the court order will be made
available on the attorney general’s website.
3. For a first violation of this new state law
during a five year period that is an intentional violation, the court will
order the appropriate licensing agencies to suspend all licenses held by the
employer for a minimum of ten days. The employer must file a signed sworn
affidavit with the county attorney. The filed affidavit must state that the
employer has terminated the employment of all unauthorized aliens and that the
employer will not intentionally or knowingly employ an unauthorized alien. A
license that is suspended will remain suspended until the employer files a
signed sworn affidavit with the county attorney. A copy of the court order
will be made available on the attorney general's website.
4. For a second violation of this new state law, the
court will order the appropriate licensing agencies to permanently revoke all
licenses that are held by the employer.
5. Proof of verifying the employment authorization
of an employee through the basic pilot program, as defined in section 23-211,
Arizona Revised Statutes, as added by this act, will create a rebuttable presumption
that an employer did not violate the new state law.
6. After December 31, 2007, every employer, after
hiring an employee, is required to verify the employment eligibility of the
employee through the basic pilot program, as defined in section 23-211, Arizona
Revised Statutes, as added by this act.
7. Instructions for
the employer on how to enroll in the basic pilot program, as defined in section
23-211, Arizona Revised Statutes, as added by this act.
Sec. 4. Employer sanctions legislative study committee
A. The employer sanctions legislative study
committee is established consisting of the following members:
1. Three members of the senate who are appointed by
the president of the senate, not more than two of whom shall be members of the
same political party. The president of the senate shall designate one of these
members to co-chair the committee.
2. Three members of the house of representatives who
are appointed by the speaker of the house of representatives, not more than two
of whom shall be members of the same political party. The speaker of the house
of representatives shall designate one of these members to co-chair the
committee.
3. A citizen of Arizona appointed by the president
of the senate who owns a business in Arizona with no more than 30 employees.
4. A citizen of Arizona appointed by the speaker of
the house of representatives who owns a business in Arizona with more than 30
employees.
B. The Committee shall:
1. Examine the laws and regulations pertaining to
employers sanctions in Arizona.
2. Examine the effects of these laws and whether
such laws are being properly implemented.
3. Examine if these laws are being applied to all
businesses in Arizona in a fair manner.
4. Examine if the complaint process is being implemented
in a fair and just manner.
5. Submit a report of its findings and
recommendations to the governor, the president of the senate and speaker of the
house of representatives on or before December 31, 2008 and submit a copy of
its report to the secretary of state and the director of the Arizona state,
library archives and public records.
C. Committee members
are not eligible to receive compensation or reimbursement of expenses.
Sec. 5. Severability
If any provision of this act or its application to any person
or circumstance is held invalid, the invalidity does not affect other
provisions or applications of this act that can be given effect without the
invalid provision or application, and to this end the provisions of this act
are severable.
Sec. 6. Short title
This act shall be known as and may be cited as the "Legal Arizona Workers Act."
Sec. 7. Appropriation; attorney general enforcement; exemption
A. The sum of $100,000 is appropriated
from the state general fund in fiscal year 2007-2008 to the attorney general
for the purpose of enforcing any immigration related matters and section
23-212, Arizona Revised Statutes, as added by this act.
B. The appropriation made in
subsection A of this section is exempt from the provisions of section 35-190,
Arizona Revised Statutes, relating to lapsing of appropriations.
Sec. 8. Appropriation; county attorney enforcement; department of
revenue; employer notice; exemption
A. The sum of
$2,430,000 is appropriated from the state general fund in fiscal year 2007-2008
to the department of administration to be distributed to the county attorneys
in this state for the purpose of enforcing any immigration related matters and
section 23-212, Arizona Revised Statutes, as added by this act. The department
of administration shall distribute these monies to each county attorney as
follows:
1. $1,430,000 to
each county attorney of a county in this state having a population of one
million five hundred thousand or more persons.
2. $500,000 to
each county attorney of a county in this state having a population of eight
hundred thousand or more persons but less than one million five hundred
thousand persons.
3. The remainder of monies to be distributed as equally as
possible to each county attorney of counties in this state having a population
of less than five hundred thousand persons.
B. The sum of $70,000 is appropriated from the state
general fund in fiscal year 2007-2008 to the department of revenue for the
purposes prescribed in section 3 of this act.
C. The
appropriation made in subsection A of this section is exempt from the
provisions of section 35-190, Arizona Revised Statutes, relating to lapsing of
appropriations.
Sec. 9. Delayed repeal
Section 4 as added by this act is repealed from and after
January 1, 2009.
