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Introduced Version House Bill 4547 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 4547


(By Delegates Schoen, Schadler, Duke, Ellem,
Walters, Porter, Tansill, Canterbury,
Rowan and Sumner)
[Introduced February 14, 2008; referred to the
Committee on Industry and Labor, Economic Development and Small Business then the Judiciary.]


A BILL to amend and reenact §21-1B-1, §21-1B-2, §21-1B-3, §21-1B-4 and §21-1B-5 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §21-1B-3a, 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, §21-1B-3, §21-1B-4 and §21-1B-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §21-1B-3a, 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 persons any 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. Additionally, employers owe a duty to the residents of the state to uphold the intent and integrity of the general workforce due and 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) "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) "Commissioner" means the labor commissioner Commissioner of the West Virginia Division of Labor 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) "Public employer" means every department, agency or instrumentality of the state or a political subdivision of the state.
(h) "Subcontractor" includes a subcontractor, contract employee, staffing agency or any contractor regardless of its tier.
(i) "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 employer operating within this state 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) 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) Employers All employers operating within this state shall be required to verify a prospective employee's legal 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 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.
(d) (f) 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 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.
§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 this article which may aid in the enforcement of the provisions of this article.
§21-1B-5. Penalties.
(a) Any employer who knowingly violates the provisions of section three of this article by employing, hiring, recruiting or referring an unauthorized worker is guilty of a misdemeanor and, upon conviction thereof, is subject to the following penalties:
(1) For a first offense, a fine of not less than one hundred dollars nor more than one thousand dollars for each violation;
(2) For a second offense, a fine of not less than five hundred dollars nor more than five thousand dollars for each violation;
(3) For a third or subsequent offense, a fine of not less than one thousand dollars nor more than ten thousand dollars, or confinement in jail for not less than thirty days nor more than one year, or both.
(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.
(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 knowingly and willfully provides false records as to the legal status or authorization to work of any employee to the commissioner or his or her authorized representative is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not more than one year or fined not more than two thousand five hundred dollars, or both.
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.
(c) Any employer who knowingly and willfully and with fraudulent intent sells, transfers or otherwise disposes of substantially all of the employer's assets for the purpose of evading the record-keeping requirements of section four of this article is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not more than one year or fined not more than ten thousand dollars, or both.



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.
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