SB1427 - 572R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 23-214, Arizona Revised Statutes, is amended to read:

START_STATUTE23-214. Verification of employment eligibility; e-verify program; economic development incentives; violation; liability exemption; enforcement; applicability; list of registered employers

A. After December 31, 2007, Every employer, after hiring an employee, shall verify the employment eligibility of the employee through the e-verify program and shall keep a record of the verification for the duration of the employee's employment or at least three years, whichever is longer.

B. In addition to any other requirement for an employer to receive an economic development incentive from a government entity, the employer shall register with and participate in the e-verify program. Before receiving the economic development incentive, the employer shall provide proof to the government entity that the employer is registered with and is participating in the e-verify program. If the government entity determines that the employer is not complying with this subsection, the government entity shall notify the employer by certified mail of the government entity's determination of noncompliance and the employer's right to appeal the determination. On a final determination of noncompliance, the employer shall repay all monies received as an economic development incentive to the government entity within thirty days of after the final determination. For the purposes of this subsection:

1. "Economic development incentive":

(a) Means any grant, loan or performance-based incentive from any government entity that is awarded after September 30, 2008. Economic development incentive

(b) Does not include any tax provision under title 42 or 43.

2. "Government entity" means this state and any political subdivision of this state that receives and uses tax revenues.

C. If a court of competent jurisdiction finds that a business entity or employer recklessly hired an unauthorized alien or did not comply with subsection A of this section, the court shall do all of the following for a first violation:

1. Order the business entity or employer to terminate the employment of every unauthorized alien.

2. Subject the business entity or employer to a three-year term of probation. During the probationary period, the business entity or employer shall file quarterly reports with the appropriate government entity for each new hire indicating that the business entity or employer used the e-verify program before a new employee was hired.

3. Order the business entity or employer to file a signed, sworn affidavit with the appropriate government entity within three business days after receiving the order that states the business entity or employer terminated the employment of every unauthorized alien and will not recklessly employ an unauthorized alien.

4. Direct the applicable government entity to suspend the business entity's or employer's license or permit if the business entity or employer holds an active, current license or permit in this state.

D. Before a business license or permit that has been suspended under subsection C, paragraph 4 of this section is reinstated, a legal representative of the business entity or employer shall submit to the court a signed, sworn affidavit stating that the business entity or employer is in compliance with this section.

E. The suspension of a license or permit under subsection C, paragraph 4 of this section shall terminate one business day after a legal representative of the business entity or employer submits a signed, sworn affidavit to the court stating that the business entity or employer is in compliance with this section.

F. IF A COURT OF COMPETENT JURISDICTION FINDS THAT A BUSINESS ENTITY OR EMPLOYER recklessly HIRED AN UNAUTHORIZED ALIEN OR VIOLATED SUBSECTION A OF THIS SECTION, THE COURT SHALL DO both OF THE FOLLOWING FOR a second VIOLATION:

1. Direct the government entity to revoke the business license or permit for the business location where the unauthorized alien performed work, if the business entity or employer holds a license or permit.

2. On receipt of the court order and notwithstanding any other law, the government entity shall immediately revoke the license or permit of the business entity or employer, if the business entity or employer holds a license or permit.

G. IF A COURT OF COMPETENT JURISDICTION FINDS THAT A BUSINESS ENTITY OR EMPLOYER recklessly HIRED AN UNAUTHORIZED ALIEN OR VIOLATED SUBSECTION A OF THIS SECTION for any third or subsequent violation, the court shall direct the applicable government entity to suspend the business entity's or employer's license or permit indefinitely if the business entity or employer holds a license or permit.

H. This section does not deny any procedural rules or legal defenses included in the e-verify program or any other federal work authorization program. A business entity or employer that establishes that it has complied in good faith with the requirements of 8 united states code section 1324a(a) or (b) is an affirmative defense that the business entity or employer did not recklessly hire or employ an unauthorized alien.

I. In any state court proceeding, the determination of whether an employee is an unauthorized alien shall be made by the United States department of homeland security pursuant to 8 united states code section 1373(c). The state court shall consider only the United States department of homeland security's determination when deciding whether an employee is an unauthorized alien. The court may take judicial notice of any verification of an individual's immigration status previously provided by the United States department of homeland security and may request that the United States department of homeland security provide further automated or testimonial verification.

J. Any BUSINESS entity or employer that terminates an employee to comply with this section is not liable for any claims made against the business entity or employer by the terminated employee if the termination is made without regard to the race, ethnicity or national origin of the terminated employee and that the termination is consistent with the antidiscrimination laws of this state and the united states.

K. If the applicable government entity fails to suspend or revoke the license or permit as ordered by the court, the government entity may not receive monies, grants or appropriations from this state until the GOVERNMENT entity has complied with the court order as verified by the attorney general.

L. Any resident of this state may petition the attorney general to bring an enforcement action against a business entity or employer by means of a written, signed petition. A valid petition shall include the allegation that describes the alleged violation, what actions led to the violation and the date and location where the violation occurred. A petition that alleges a violation on the basis of race, ethnicity or national origin is invalid and may not be acted on. The attorney general shall respond to any petition under this subsection within sixty days after receiving the petition by either filing a civil complaint in a court of competent jurisdiction or by INFORMING the petitioner in writing that the attorney general has determined that filing a civil complaint is not warranted.

M. This section does not apply to:

1. An independent contractor or an employer that hires independent contractors.

2. Casual domestic labor performed within a household.

N. Entrapment is an affirmative defense to a violation of this section. To claim entrapment, the business entity or employer:

1. Must admit by testimony or other evidence the substantial elements of the violation.

2. Has the burden of proving by clear and convincing evidence all of the following:

(a) The idea for committing the violation began with law enforcement officers or their agents rather than the business entity or employer.

(b) The law enforcement officers or their agents urged and induced the business entity or employer to commit the violation.

(c) The business entity or employer was not predisposed to commit the violation before the law enforcement officers or their agents urged and induced the business entity or employer to commit the violation.

O. A county attorney and the attorney general have the authority to bring a civil complaint in a court of competent jurisdiction to enforce the requirements of this section.

C. P. Every three months the attorney general shall request from the United States department of homeland security a list of employers from this state that are registered with the e-verify program. On receipt of the list of employers, the attorney general shall make the list available on the attorney general's website. END_STATUTE