fair and legal employment act
Committee on Government
Committee on Appropriations
Caucus and COW
As Transmitted to the Governor
HB 2779 contains provisions relating to identity theft, license eligibility of employers in Arizona, verification of the employment eligibility of employees and establishes the eight-member Employer Sanctions Legislative Study Committee. In addition, HB 2779 appropriates $2,600,000 from the state General Fund (GF) FY 2007-08 for carrying out the provisions of the bill.
Generally, 8 U.S.C. § 1324a prohibits a person or entity from knowingly hiring, recruiting, or referring for a fee, an unauthorized alien. 8 U.S.C § 1324a(h)(2) states the following:
The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.
In addition, 8 U.S.C. § 1324a(h)(3) defines an unauthorized alien as an alien that is not either lawfully admitted for permanent residence or authorized to be employed by Title 8, Chapter 12 of the U.S.C. or by the Attorney General.
The Basic Pilot Program (BPP) is jointly operated by the U.S. Citizenship and Immigration Services Bureau (USCIS) under the Department of Homeland Security (DHS) and the Social Security Administration (SSA). The BPP involves verification checks of SSA and DHS databases, using an automated system to verify the employment authorization of all newly hired employees. Currently, an employer’s participation in the BPP is voluntary, is free to participating employers and can be accessed via the Internet.
The BPP has been in operation since November 1997 and legislation signed by the President of the United States on December 3, 2003, extended the BPP through November 2008.
· Modifies aggravated taking the identity of another person or entity by decreasing the amount of identities taken from five to three or more persons.
· Stipulates that a person who knowingly commits identity theft with the intent to obtain employment commits aggravated taking the identity of another person or entity.
· Defines agency, basic pilot program, employee, employer, intentionally, knowingly employ an unauthorized alien, license and unauthorized alien.
· Prohibits an employer from intentionally employing an unauthorized alien or knowingly employing an unauthorized alien.
· Requires the superior court to expedite any action under the false swearing provisions, including assigning the hearing at the earliest date.
· Requires the AG or county attorney, upon receipt of a complaint that an employer allegedly intentionally or knowingly employs an unauthorized alien, to investigate the complaint. The investigating body is required to verify the work authorization of the alleged with the federal government.
· After an investigation determines the complaint to be valid, the investigating body is required to:
Ø Notify U.S. Immigration and Customs Enforcement of the unauthorized alien.
Ø Notify the local law enforcement agency of the unauthorized alien.
Ø If the investigation was completed by the AG, then the AG must notify the appropriate county attorney to bring an action against the employer.
· Prohibits the county attorney from prosecuting violations occurring before January 1, 2008.
· For a first violation of knowingly employing an unauthorized alien, requires the court to order the employer to terminate the employment of all unauthorized aliens and to suspend the appropriate licenses unless the employer files a signed sworn affidavit with the county attorney within three business days that states that the employer has terminated the employment of all unauthorized aliens and that the employer will not intentionally or knowingly employ an unauthorized alien. If the affidavit is filed, the licenses are reinstated, if the affidavit is not filed the court may order the suspension of licenses, not to exceed ten business days. Violators are subject to a three-year probationary period.
· For a first violation of intentionally employing an unauthorized alien, requires the court to order the employer to terminate the employment of all unauthorized aliens and to suspend the appropriate licenses for a minimum of ten business days. Violators are subject to a five-year probationary period.
· Stipulates that when suspending a license, the court shall base its decisions on the following:
· The number of unauthorized aliens employed by the employer.
· Any prior misconduct by the employer.
· The degree of harm resulting from the violation.
· Whether the employer made good faith efforts to comply with any applicable requirements.
· The duration of the violation.
· The role of the directors, officers or principals of the employer in the violation.
· Any other factors the Court deems appropriate.
· Requires the AG to maintain an online database consisting of the court orders issued as well as a list of violating employers.
· Requires employers that have been placed on probation to file quarterly reports with the county attorney of new employees hired at the location where the unauthorized alien performed work.
· For a second violation during the probationary period, requires appropriate licenses to be permanently revoked.
· For determining whether a person is an unauthorized alien, the court must only consider the federal government’s determination pursuant 8 U.S.C. § 1373(c). The determination creates a rebuttable presumption of the person’s lawful status. The court may take judicial notice of the determination and request that the federal government provide automated or testimonial verification.
· Specifies that proof of verifying the employment authorization of an employee through the BPP creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien.
· Stipulates that an employer that has complied in good faith with the requirements of 8 U.S.C. § 1324b establishes an affirmative defense that the employer did not intentionally or knowingly employ an unauthorized alien.
· Specifies that filing a false and frivolous complaint against an employer under these provisions is a class 3 misdemeanor.
· Specifies that nothing is to be construed to require an employer to take action that they believe in good faith would violate federal or state law.
Verification of Employees
· After December 31, 2007, requires every employer to utilize the Basic Pilot Program to verify employment eligibility.
Employer Sanction Study Committee
· Establishes the employer sanctions legislative study committee (Committee) consisting of the following eight-members:
Ø Three members of the Senate, appointed by the President of the Senate, with not more than two from one political party. The President selects one member to serve as co-chair.
Ø Three members of the House of Representatives, appointed by the Speaker of the House of Representatives, with not more than two from one political party. The Speaker selects one member to serve as co-chair.
Ø A citizen of Arizona appointed by the President of the Senate who owns a business in Arizona with no more than 30 employees.
Ø A citizen of Arizona appointed by the Speaker of the House of Representatives who owns a business in Arizona with more than 30 employees.
· Specifies that the Committee shall:
Ø Examine the laws and regulations pertaining to employers sanctions in Arizona.
Ø Examine the effects of these laws and whether such laws are being properly implemented.
Ø Examine if the laws are being applied to all businesses in Arizona in a fair manner.
Ø Examine if the complaint process is being implemented in a fair and just manner.
Ø Submit a report of the Committee’s 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 the report to the Secretary of State and the director of the Arizona State, Library Archives and Public Records.
· Appropriates $100,000 from the GF in FY 2007-08 to the AG for enforcing any immigration related matters and the provisions of the bill.
· Appropriates $2,430,000 from the GF in FY 2007-08 to the Arizona Department of Administration (ADOA) for distribution to county attorneys for enforcing any immigration related matters and the provisions of the bill. The monies provided to ADOA are to be distributed as follows.
Ø $1,430,000 to a county attorney in a county with 1,500,000 persons or more.
Ø $500,000 to a county attorney in a county with at least 800,000 persons but less than 1,500,000.
Ø $500,000 to be split, as equally as possible, among the county attorneys of counties with populations less than 500,000 persons.
· Appropriates $70,000 from the GF in FY 2007-08 to DOR for complying with the employer notice section.
· Exempts all above appropriations from lapsing.
· Contains a severability clause.
· Contains an employer notice section. On or before October 1, 2007, the Department of Revenue (DOR) is required to notify employers that are required to withhold tax of the new law, its requirements, and how to comply.
Specifies that these provisions shall be known and cited as
the “Legal Arizona Workers Act.”
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First Regular Session 2 June 20, 2007
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