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Enrolled Version - Final Version House Bill 3301 History

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HB3301 SUB ENR
ENROLLED

COMMITTEE SUBSTITUTE

FOR

H. B. 3301

(By Delegates Moye, Schoen, Klempa, Campbell,

Sumner, Caputo, D. Poling and Barker)



[Passed March 9, 2010; in effect ninety days from passage.]


AN ACT to amend and reenact §21-1B-5 and §21-1B-7 of the Code of West Virginia, 1931, as amended, and to further amend said code by adding thereto a new section, designated §21-1B-8, all relating to employment of unauthorized workers; creating a penalty for failure to maintain certain records; authorizing the Commissioner to issue notices to produce records and citations under certain circumstances; and requiring such citations to be presented to a magistrate or circuit judge.

Be it enacted by the Legislature of West Virginia:
That §21-1B-5 and §21-1B-7of the Code of West Virginia, 1931, as amended, be amended and reenacted, and that said code be amended by adding a new section, designated §21-1B-8,
all to read as follows:
ARTICLE 1B. VERIFYING LEGAL EMPLOYMENT STATUS OF WORKERS.
§21-1B-5. Penalties.
(a) Any employer who knowingly and willfully fails to maintain records as required by section four of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined one hundred dollars for each offense. Failure to keep records on each employee constitutes a separate offense.
(b) 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.
(c) 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.
(d) 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.

§21-1B-7. Suspension or revocation of license.
(a) If, upon examination of the record or records of conviction, the commissioner determines that an employer has been convicted of a third or subsequent offense under subsection (b), section five of this article or has been convicted of the offenses described in subsection (c) or (d) of said section, the commissioner may enter an order imposing the following disciplinary actions:
(1) Permanently revoke or file an action to revoke any license held by the employer; or
(2) Suspend a license or move for a suspension of any license held by the employer for a specified period;
(b) The order shall contain the reasons for the revocation or suspension and the revocation or suspension periods. Further, the order shall give the procedures for requesting a hearing. The person shall be advised in the order that because of the receipt of the record of conviction by the commissioner a presumption exists that the person named in the record of conviction is the person named in the commissioner's order and this constitutes sufficient evidence to support a revocation or suspension and that the sole purpose for the hearing held under this section is for the person requesting the hearing to present evidence that he or she is not the person named in the record of conviction. A copy of the order shall be forwarded to the person by registered or certified mail, return receipt requested. No revocation or suspension shall become effective until ten days after receipt of a copy of the order.

§21-1B-8. Citation for violation.

(a) If, upon inspection or investigation, the commissioner believes that an employer has violated a provision of this article, the commissioner shall issue a notice to produce records or documents to the employer. Each notice shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of this article alleged to have been violated. The employer shall have up to seventy-two hours, or for good cause shown to the commissioner, a greater period of time, to produce employment status verification records.
(b) If after the time period allowed under subsection (a) of this section the employer is unable to produce the required documents to satisfy the commissioner that there is no violation of this article, the commissioner may issue a citation to the employer. Each citation shall be in writing on a standard form as prescribed by the commissioner and shall describe with particularity the nature of the violation, including a reference to the provision of this article alleged to have been violated.
Each citation issued under this section or a copy or copies thereof shall be prominently presented to a magistrate or circuit judge in the county where the violation occurred.
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