H. B. 4266
(By Delegates Moye, Barker, M. Poling,
Stephens, Campbell, Schoen, Rodighiero,
D. Poling and Argento)
[Introduced February 2, 2010; referred to the
Committee on Energy, Industry and Labor, Economic Development and
Small Business then the Judiciary.]
A BILL to amend and reenact §21-1B-2 and §21-1B-3 of the Code of
West Virginia, 1931, as amended, all relating to verifying
legal employment status of workers; providing new definitions;
requiring employers to register with and utilize the
electronic verification of work authorization program of the
Illegal Immigration Reform and Immigration Responsibility Act
of 1996, Public Law 104-208, Division C, Section 403(a); 8
U.S.C. Section 1324a, and operated by the United States
Department of Homeland Security, known as the E-Verify
Program; and providing dates by which employers are to meet
the verification requirements.
Be it enacted by the Legislature of West Virginia:
That §21-1B-2 and §21-1B-3 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 1B. VERIFYING LEGAL EMPLOYMENT STATUS OF WORKERS.
§21-1B-2. Definitions.
(a) "Employer" means any individual, person, corporation,
department, board, bureau, agency, commission, division, 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) "Commissioner" means the Labor Commissioner or his or her
designated agent.
(c) "Unauthorized worker" means a person who does not have the
legal right to be employed or is employed in violation of law.
(d) "Records" means records that may be required by the
Commissioner of Labor for the purposes of compliance with the
provisions of this article.
(e) "Knowingly" means, with respect to conduct or to a
circumstance described by a statute defining an offense, that a
person is aware by documentation or action that the person's
conduct is of that nature or that the circumstance exists. Failure
to request or review documentation of an employee's legal status or
authorization to work is deemed to be "knowingly".
(f) "License" means any permit, certificate, approval,
registration, charter or similar form of authorization that is
required by law and that is issued for the purpose of operating a
business in this state.
(g) "Status verification system" means the electronic
verification of work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996,
Public Law 104-208, Division C, Section 403(a); 8 U.S.C. Section
1324a, and operated by the United States Department of Homeland
Security, known as the E-Verify Program.
(h) "Unauthorized alien" means an alien as defined in Section
1324a(h)(3) of Title 8 of the United States Code.
§21-1B-3. Unauthorized workers; employment prohibited.
(a) It is unlawful for any employer to knowingly 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) Employers in the State of West Virginia may only hire
employees who are citizens of the United States of America or are
authorized workers. For purposes of this section, an authorized
worker is an individual who was lawfully present in the United
States and permitted to work at the time of employment and for the
duration of employment, or was permanently residing in the United
States under color of law and permitted to work at the time of
employment and for the duration of employment.
(b) (c) Employers shall be required to verify a prospective
employee's legal status or authorization to work prior to employing
the individual or contracting with the individual for employment
services and shall only hire employees who are citizens of the
United States of America or are authorized to work. Every employer shall register with and utilize the status verification system to
verify the federal employment authorization status of all newly
hired employees. For purposes of this section, a legal alien is an
individual who was lawfully present in the United States at the
time of employment and for the duration of employment, or was
permanently residing in the United States under color of law at the
time of employment and for the duration of employment.
(c) (d) For purposes of this article, 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:
which includes 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 other valid document providing
evidence of legal residence or authorization to work in the United
States.
(d) (e) For purposes of enforcing the provisions of this
article, and notwithstanding any other provision of this code to
the contrary, the commissioner or his or her authorized
representative may access information maintained by any other state
agency, including, but not limited to, the Bureau of Employment
Programs and the Division of Motor Vehicles, for the limited
purpose of confirming the validity of a worker's legal status an
individual's eligibility or authorization to work. The commissioner shall promulgate rules in accordance with the
provisions of chapter twenty-nine-a of this code to safeguard
against the release of any confidential or identifying information
that is not necessary for the limited purpose of enforcing the
provisions of this article.
(f) State of West Virginia agencies and political
subdivisions, public contractors and private employers with two
hundred fifty or more employees shall meet verification
requirements not later than January 1, 2011.
(g) Employers with at least one hundred but less than two
hundred fifty employees shall meet verification requirements not
later than January 1, 2012.
(h) Employers with at least thirty but less than one hundred
employees shall meet verification requirements not later than
January 1, 2013.
(i) Employers with six or less employees may apply to the
Labor Commissioner for a waiver.
(j) All employers shall meet verification requirements not
later than January 1, 2014.
NOTE: The purpose of this bill is to require all employers in
West Virginia to verify legal employment status of workers by
requiring employers to register with and utilize the electronic
verification of work authorization program of the Illegal
Immigration Reform and Immigration Responsibility Act of 1996,
Public Law 104-208, Division C, Section 403(a); 8 U.S.C. Section
1324a, and operated by the United States Department of Homeland
Security, known as the E-Verify Program. The bill provides new definitions and also provides dates by which employers are to meet
the verification requirements.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.