H. B. 3157
(By Delegates Schoen, Armstead, Lane,Overington,
Shook, Webster, Caputo, DeLong and Palumbo)
[Introduced February 21, 2007; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §21-1B-1, §21-1B-2 and §21-1B-3 of the
Code of West Virginia, 1931, as amended; and to amend said
code by adding thereto a new section, designated §21-1B-3a;
and to amend and reenact §21-1B-4 and §21-1B-5 of said code,
all relating to the legal employment status of West Virginia
workers.
Be it enacted by the Legislature of West Virginia:
That §21-1B-1, §21-1B-2 and §21-1B-3 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; that said
code be amended by adding thereto a new section, designated
§21-1B-3a; and that §21-1B-4 and §21-1B-5 of said code be amended
and reenacted, all to read as follows:
ARTICLE 1B. VERIFYING LEGAL EMPLOYMENT STATUS OF WORKERS.
§21-1B-1. Findings; policy.
The Legislature finds that
all employers have the responsibility to verify the legal employment status of
all any
persons person who comes into their employ and to report their
employment to the appropriate governmental agencies,
but that it is
the responsibility of public employers and those contractors and
subcontractors who contract with the state to take the lead in
combating illegal immigration by participating in the Department of
Homeland Security's "Federal Work Authorization Program."
Employers are precluded from hiring unauthorized workers and can be
penalized for doing so. Employers owe a duty to the residents of
the state to uphold the
intent and integrity of the general
workforce
and due to
prevent the potential
loss of revenue to the
state by loss of
taxes tax revenue, unemployment premiums and
workers' compensation premiums.
The virtues of a uniform legal
employment verification program serve the purpose of discouraging
discrimination on the basis of race, ethnicity and national origin
by requiring all new employees to prove lawful presence within the
United States.
§21-1B-2. Definitions.
(a) "Public employer" means every department, agency or
instrumentality of the state or a political subdivision of the
state.
(b) "Subcontractor" includes a subcontractor, contract
employee, staffing agency or any contractor regardless of its tier.
(a) (c) "Employer" means any individual, person, corporation,
department, board, bureau, agency, commission, division,
department, agency or instrumentality of the state or a political
subdivision of the state, 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) (d) "Commissioner" means the
labor commissioner
Commissioner of the West Virginia Division of Labor or his or her
designated agent.
(c) (e) "Unauthorized worker" means a person who does not have
the legal right to be employed or is employed in violation of law.
(d) (f) "Records" means records that may be required by the
Commissioner of Labor for the purposes of compliance with the
provisions of this article.
(e) (g) "Federal Work Authorization Program" means any of the
electronic verification of work authorization programs operated by
the United States Department of Homeland Security or any equivalent
"Federal Work Authorization Program" operated by the United States
Department of Homeland Security to verify information of newly
hired employees, pursuant to the Immigration Reform and Control Act
of 1986 (IRCA), D.L. 99-603.
§21-1B-3. Unauthorized workers; employment prohibited.
(a) It is unlawful for
any employers employer operating within this state to 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) It is unlawful for any employer, after hiring a person in
accordance with subsection (a) of this section, to continue to
employ that person knowing the person is or has become an
unauthorized worker with respect to such employment.
(b) (c) All employers
operating within this state shall be
required to verify a prospective employee's
identity and legal
status or authorization to work prior to employing the individual
or contracting with the individual for employment services
and
attest, under penalty of false swearing on a form designated by the
West Virginia Department of Labor, that it has verified that the
individual is not an unauthorized worker by examining the documents
described in subsection (d) of this section.
(c) (d) For purposes of this
article section, 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 any other valid document providing evidence of legal residence or authorization to work in the United
States. all valid documents establishing both identity and
employment authorization as set forth in 8 U.S.C. § 1324a and the
regulations promulgated thereunder, in effect at the time of
adoption of this section: Provided, That these documents be listed
on a form designated by the West Virginia Department of Labor.
(e) Nothing in this section or section four of this article
effects or alters any of the requirements set forth in section
three-a, article one-b, chapter twenty-one.
§21-1B-3a. Participation in the Federal Work Authorization
Program.
(a) Notwithstanding any provision in section three, article
one-b, chapter twenty-one, beginning on the first day of July, two
thousand eight, every public employer shall register and
participate in the "Federal Work Authorization Program" to verify
information of all new employees.
(b) (1) No public employer may enter into or renew a contract
for the physical performance of services within this state unless
the contractor registers and participates in the "Federal Work
Authorization Program" to verify information of all new employees.
(2) No contractor or subcontractor who enters into or renews
a contract with a public employer may enter into or renew such a
contract or subcontract in connection with the physical performance
of services within this state unless the contractor or subcontractor registers and participates in the "Federal Work
Authorization Program" to verify information of all new employees.
(3) Paragraphs (1) and (2) of this subsection (b), apply as
follows:
(A) Beginning on the first day of July, two thousand eight,
with respect to public employers, contractors or subcontractors of
five hundred or more employees;
(B) Beginning on the first day of July, two thousand nine,
with respect to public employers, contractors or subcontractors of
one hundred or more employees; and
(C) Beginning on the first day of July, two thousand ten, with
respect to all public employers, contractors or subcontractors.
(c) This section shall be enforced without regard to race,
religion, gender, ethnicity or national origin.
(d) Except as provided in subsections (e) and (f) of this
section, the commissioner may propose legislative rules for
legislative approval and emergency rules explaining and
implementing this article, which rules shall be proposed in
accordance with the provisions of article three, chapter twenty-
nine-a of this code. The authority to propose rules includes
authority to amend or repeal those rules. If proposed legislative
rules for this section are filed in the State Register before the
fifteenth day of June, two thousand eight, those rules may be
promulgated as emergency legislative rules, as provided in article three of chapter twenty-nine-a. The commissioner shall publish such
rules on the West Virginia Division of Labor's website.
(e) The Secretary of the West Virginia Department of
Transportation shall prescribe all forms and propose rules for
legislative approval deemed necessary for the application of this
section to any contract or agreement relating to public
transportation in accordance with the provisions of article three,
chapter twenty-nine-a of this code. The authority to propose rules
includes authority to amend or repeal those rules. If proposed
legislative rules for this section are filed in the State Register
before the fifteenth day of June, two thousand eight, those rules
may be promulgated as emergency legislative rules, as provided in
article three of said chapter twenty-nine-a. The secretary shall
publish such rules on the West Virginia Department of
Transportation's website.
(f) The Director of the West Virginia Division of Personnel
shall prescribe all forms and propose rules for legislative
approval deemed necessary for the application of this section to
all executive agencies in accordance with the provisions of article
three, chapter twenty-nine-a of this code. The authority to
propose rules includes authority to amend or repeal those rules. If
proposed legislative rules for this section are filed in the State
Register before the fifteenth day of June, two thousand eight,
those rules may be promulgated as emergency legislative rules, as provided in article three of said chapter twenty-nine-a. The
director shall publish such rules on the West Virginia Division of
Personnel's website.
(g) Nothing in this section effects or alters any order issued
pursuant to 8 U.S.C.A. §1324a in regard to compulsory registration
and participation in the "Federal Work Authorization Program."
§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
section three of
this article
which may aid in the enforcement of the provisions of
this article.
§21-1B-5.
Penalties.
(a) The first violation of the provisions of this article is
a misdemeanor and, upon conviction thereof, an employer shall be
fined not less than one hundred dollars nor more than one thousand dollars for each violation.
(a) (1) For the first violation of sections three or four of
this article, involving any number of unauthorized workers, an
employer shall be issued a civil fine of not less than two hundred
seventy-five dollars and not more than two thousand two hundred
dollars, for each unauthorized worker.
(b) Any employer who has previously been convicted of a
violation of this article and who thereafter violates the
provisions of this article shall be deemed to have knowingly
violated the provisions of this article and shall be guilty of a
misdemeanor and shall be fined not less than five hundred or more
than five thousand dollars for each violation.
(2) For the second violation of sections three or four of this
article, involving any number of unauthorized workers, an employer
shall be issued a civil fine of not less than two thousand two
hundred dollars and not more than five thousand five hundred
dollars, for each unauthorized worker.
(3) For every violation after the second violation of sections
three or four of this article, involving any number of unauthorized
workers, an employer shall be issued a civil fine of not less than
three thousand dollars and not more than ten thousand dollars, for
each unauthorized worker.
(4) In addition to the civil fines provided by subdivisions
(1), (2) and (3) of subsection (a) of this section, the Division of Labor or its appointed representative may issue a cease and desist
order, or may compel the employer to register and participate in
the "Federal Work Authorization Program."
(b) Any employer, who establishes a "pattern or practice" of
knowingly hiring unauthorized workers or fails to comply with any
order issued under subdivision (4), subsection (a) of this section,
is guilty of a misdemeanor and, upon conviction thereof, the
employer shall be fined not more than three thousand dollars for
each unauthorized worker in addition to any civil penalties
assessed, imprisoned for not more than six months for the entire
"pattern or practice" or both fined and imprisoned.
NOTE: The purpose of this bill is to require public employers
and those contractors and subcontractors who contract with the
state to register and participate in the Department of Homeland
Security's Federal Work Authorization Program; update the code to
comply with corresponding federal law; and discourage
discrimination on the basis of race, ethnicity and national origin.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.