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REFERENCE TITLE: employer sanctions; subpoenas |
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State of Arizona Senate Forty-ninth Legislature Second Regular Session 2010
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SB 1403 |
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Introduced by Senator Pearce R
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AN ACT
amending sections 23-212 and 23-212.01, Arizona Revised Statutes; relating to employment of unauthorized aliens.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 23-212, Arizona Revised Statutes, is amended to read:
23-212. Knowingly employing unauthorized aliens; prohibition; false and frivolous complaints; violation; classification; license suspension and revocation; affirmative defense
A. An employer shall not knowingly employ an unauthorized alien. If, in the case when an employer uses a contract, subcontract or other independent contractor agreement to obtain the labor of an alien in this state, the employer knowingly contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer violates this subsection.
B. The attorney general shall prescribe a complaint form for a person to allege a violation of subsection A of this section. The complainant shall not be required to list the complainant's social security number on the complaint form or to have the complaint form notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly knowingly employs an unauthorized alien, the attorney general or county attorney shall investigate whether the employer has violated subsection A of this section. If a complaint is received but is not submitted on a prescribed complaint form, the attorney general or county attorney may investigate whether the employer has violated subsection A of this section. This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form. The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin. A complaint that is submitted to a county attorney shall be submitted to the county attorney in the county in which the alleged unauthorized alien is or was employed by the employer. The county sheriff or any other local law enforcement agency may assist in investigating a complaint. The county attorney may take evidence, administer oaths or affirmations, issue subpoenas requiring attendance and testimony of witnesses and cause depositions to be taken. 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. On the request of the county attorney, the superior court may authorize the issuance of a subpoena duces tecum requiring the production, inspection or copying of books, papers and other documents that are necessary for the enforcement of this section. The court shall authorize the issuance of the subpoena only after a review of all affidavits that set forth facts tending to establish reasonable suspicion that a violation of this section has occurred. A subpoena may be served by personal service or certified mail, return receipt requested. An employer or any person subject to the subpoena, within the time specified for compliance, may file a motion in superior court to quash or modify the subpoena. A copy of the motion to quash or modify shall be served on the party serving the subpoena. If the employer or any other person refuses to obey a subpoena or fails to answer questions as provided by subsection b of this section, the attorney general or the county attorney may apply to the superior court in the manner provided in section 12-2212.
D. Proceedings held during the course of a confidential investigation are exempt from title 38, chapter 3, article 3.1.
C. E. If, after an investigation, the attorney general or county attorney determines that the complaint is not false and 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 F of this section if the complaint was originally filed with the attorney general.
D. F. An action for a violation of subsection A of this section shall be brought against the employer by the county attorney in the county where the unauthorized alien employee is or was employed by the employer. The county attorney shall not bring an action against any employer for any violation of subsection A of this section that occurs before January 1, 2008. A second violation of this section shall be based only on an unauthorized alien who is or was employed by the employer after an action has been brought for a violation of subsection A of this section or section 23‑212.01, subsection A.
E. G. 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. H. On a finding of a violation of subsection A of this section:
1. For a first violation, as described in paragraph 3 of this subsection, 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 for the business location where the unauthorized alien performed work. During the probationary period the employer shall file quarterly reports in the form provided in section 23‑722.01 with the county attorney of each new employee who is hired by the employer at the business 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 in this state and that the employer will not intentionally or knowingly employ an unauthorized alien in this state. 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 specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business 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 I of this section.
(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 second violation, as described in paragraph 3 of this subsection, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business 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.
3. The violation shall be considered:
(a) A first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this subsection or section 23‑212.01, subsection F H for that employer's business location.
(b) A second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this subsection or section 23‑212.01, subsection F H for that employer's business location.
G. I. The attorney general shall maintain copies of court orders that are received pursuant to subsection F H of this section and shall maintain a database of the employers and business locations that have a first violation of subsection A of this section and make the court orders available on the attorney general's website.
H. J. 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. K. For the purposes of this section, proof of verifying the employment authorization of an employee through the e-verify program creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien.
J. L. For the purposes of this section, an employer that establishes that it has complied in good faith with the requirements of 8 United States Code section 1324a(b) establishes an affirmative defense that the employer did not knowingly employ an unauthorized alien. An employer is considered to have complied with the requirements of 8 United States Code section 1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to meet the requirements, if there is a good faith attempt to comply with the requirements.
Sec. 2. Section 23-212.01, Arizona Revised Statutes, is amended to read:
23-212.01. Intentionally employing unauthorized aliens; prohibition; false and frivolous complaints; violation; classification; license suspension and revocation; affirmative defense
A. An employer shall not intentionally employ an unauthorized alien. If, in the case when an employer uses a contract, subcontract or other independent contractor agreement to obtain the labor of an alien in this state, the employer intentionally contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer violates this subsection.
B. The attorney general shall prescribe a complaint form for a person to allege a violation of subsection A of this section. The complainant shall not be required to list the complainant's social security number on the complaint form or to have the complaint form notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly intentionally employs an unauthorized alien, the attorney general or county attorney shall investigate whether the employer has violated subsection A of this section. If a complaint is received but is not submitted on a prescribed complaint form, the attorney general or county attorney may investigate whether the employer has violated subsection A of this section. This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form. The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin. A complaint that is submitted to a county attorney shall be submitted to the county attorney in the county in which the alleged unauthorized alien is or was employed by the employer. The county sheriff or any other local law enforcement agency may assist in investigating a complaint. The county attorney may take evidence, administer oaths or affirmations, issue subpoenas requiring attendance and testimony of witnesses and cause depositions to be taken. 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. On the request of the county attorney, the superior court may authorize the issuance of a subpoena duces tecum requiring the production, inspection or copying of books, papers and other documents that are necessary for the enforcement of this section. The court shall authorize the issuance of the subpoena only after a review of all affidavits that set forth facts tending to establish reasonable suspicion that a violation of this section has occurred. A subpoena may be served by personal service or certified mail, return receipt requested. An employer or any person subject to the subpoena, within the time specified for compliance, may file a motion in superior court to quash or modify the subpoena. A copy of the motion to quash or modify shall be served on the party serving the subpoena. If the employer or any other person refuses to obey a subpoena or fails to answer questions as provided by subsection b of this section, the attorney general or the county attorney may apply to the superior court in the manner provided in section 12-2212.
D. Proceedings held during the course of a confidential investigation are exempt from title 38, chapter 3, article 3.1.
C. E. If, after an investigation, the attorney general or county attorney determines that the complaint is not false and 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 F of this section if the complaint was originally filed with the attorney general.
D. F. An action for a violation of subsection A of this section shall be brought against the employer by the county attorney in the county where the unauthorized alien employee is or was employed by the employer. The county attorney shall not bring an action against any employer for any violation of subsection A of this section that occurs before January 1, 2008. A second violation of this section shall be based only on an unauthorized alien who is or was employed by the employer after an action has been brought for a violation of subsection A of this section or section 23‑212, subsection A.
E. G. 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. H. On a finding of a violation of subsection A of this section:
1. For a first violation, as described in paragraph 3 of this subsection, 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 for the business location where the unauthorized alien performed work. During the probationary period the employer shall file quarterly reports in the form provided in section 23‑722.01 with the county attorney of each new employee who is hired by the employer at the business 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 in this state and that the employer will not intentionally or knowingly employ an unauthorized alien in this state. 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 for failing to file a signed sworn affidavit 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 specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business 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 I of this section.
2. For a second violation, as described in paragraph 3 of this subsection, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business 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.
3. The violation shall be considered:
(a) A first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this subsection or section 23‑212, subsection F H for that employer's business location.
(b) A second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this subsection or section 23‑212, subsection F H for that employer's business location.
G. I. The attorney general shall maintain copies of court orders that are received pursuant to subsection F H of this section and shall maintain a database of the employers and business locations that have a first violation of subsection A of this section and make the court orders available on the attorney general's website.
H. J. 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. K. For the purposes of this section, proof of verifying the employment authorization of an employee through the e-verify program creates a rebuttable presumption that an employer did not intentionally employ an unauthorized alien.
J. L. For the purposes of this section, an employer that establishes that it has complied in good faith with the requirements of 8 United States Code section 1324a(b) establishes an affirmative defense that the employer did not intentionally employ an unauthorized alien. An employer is considered to have complied with the requirements of 8 United States Code section 1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to meet the requirements, if there is a good faith attempt to comply with the requirements.