Arizona Capitol Update: 6/4/06

HB 2577

Immigration Policy; Forgery; Employment; Licensing

This bill as engrossed contains an Appropriation.

HB 2577 stipulates that an employer who verifies the immigration status of their employees through the Basic Pilot Program and complies with all federal and state flaws regarding lawful employment is not subject to any civil sanction or criminal penalty imposed for employing an illegal alien.

Provisions

Forgery· Expands the definition of forgery to include if a person falsely makes/alters a written instrument that fulfills the requirements for establishing identity/eligibility to work in the U.S. and is used to obtain employment by a person not authorized to work in the U.S.

· Makes the new forgery offense a Class 3 felony.

· Requires the court to award damages incurred by any employer who relied on the forged instrument in hiring/employing a person who wasn’t authorized to work in the U.S., including the employer’s costs, attorney fees and expenses, if the court orders restitution for the forgery offense.

Employment of an Unauthorized Worker

· Exempts an employer from any civil sanction/criminal penalty imposed by the state for employing an unauthorized worker if the employer either:

Voluntarily verifies the immigration status of the employer’s employees through the Program.

Complies with all federal and state laws regarding lawful employment.

· Requires an employer to discharge an employee if the employer discovers that the employee provided an invalid social security number (SSN). Does not apply if:
The employee provides an accurate SSN or legal or valid federal or state identification document within ten business days, or
An error occurred when a valid SSN was processed by the employer.

· Provides that beginning January 1, 2007, if an investigation by an agency determines that a person who operates a business/enterprise in Arizona employs an unauthorized worker, the agency must notify the Attorney General (AG).

Upon notification, the AG must immediately:

Ø Order the person to cease and desist from employing the unauthorized worker and discharge any other unauthorized worker. The AG must confirm that the employer received the cease and desist order through an appropriate method.

Ø Notify the United States Immigration and Customs Enforcement

The person must comply with the cease and desist order within ten business days after the AG confirms that the person received the order. If the person fails to comply, the AG may assess a civil penalty of $5,000.

· Provides the following list of circumstances that unless satisfactorily explained, may give rise to the inference that an employer knowingly employed an unauthorized worker if:

The employer pays the employee with cash instead of by check or automatic deposit.

The employer uses the services of a person who is either known to be or acting in concert with others who are violating Title 13, Chapter 23 (Organized crime, fraud and terrorism).

The employer violates the minimum wage requirements of the Fair Labor Standards Act.

The employer accepts a consular identification card issued by a foreign government as a form of identification when determining the employee’s identity.

· Allows the agency or AG to bring a civil cause of action to have the person’s license suspended or revoked if the person fails to comply with the cease and desist order.

· Requires employers to make payments of contributions for employment security purposes, secure workers’ compensation and withhold from employees as required by law.

· Requires all employers to complete and retain I-9 eligibility forms for all employees.

· States that if the AG determines that an employer has failed to complete/retain I-9 forms, the AG shall notify the United States Citizenship and Immigration Services.

· Requires an enforcement agency to coordinate with the Department of Economic Security, the Industrial Commission and the Department of Revenue to investigate employers that fail to comply with the specified employment laws.

· Prescribes the following for a 1st violation during a one-year period for an employer who knowingly failed to comply with the specified employment laws:

Requires the enforcement agency to mail written notice describing the violation to the employer.

Allows the employer to contest the agency’s determination within 30 days of receiving the notice. The employer must submit supporting evidence that the employer did not commit a violation and the agency must give the employer a reasonable amount of time to obtain copies of supporting information from federal and state agencies.

Provides that the enforcement agency must evaluate the evidence and issue a final determination. The final determination shall be mailed to the employer.

States that if the employer does not contest the original determination or if the final determination affirms the violation, the employer is subject to a civil penalty of $2,000 per employee (not to exceed $10,000) that the employer knowingly failed to comply with the employment laws.

Deposits 50% of the monies from the civil penalty in the state general fund.

Deposits the other 50% of the monies in the:

Ø State general fund if the AG initiated the action, or
Ø County general fund if the County Attorney initiated the action, or
Ø City or town general fund if the city or town attorney initiated the action.

Subjects the employer to an additional penalty equal to the amount of revenue lost to the state because of the violation. These monies are deposited in the general fund.

· Prescribes the following for a 2nd violation during a one-year period:

Makes a 2nd violation a Class 1 misdemeanor. Exempts the employer from prosecution if the process for a first violation is not totally completed.

Allows the court to order the employer’s license be suspended on conviction.

Requires the court to order the employer to pay an additional assessment of $4,000 per employee that the employer hired and knowingly failed to comply with the employment laws.

Deposits 50% of the monies from the assessment into the general fund.

Deposits the other 50% of the monies in the:
Ø State general fund if the AG initiated the action, or
Ø County general fund if the County Attorney initiated the action, or
Ø City or town general fund if the city or town attorney initiated the action.

Requires the employer to pay an additional assessment equal to two times the amount of revenue lost to the state because of the violation. Deposits these monies in the general fund.
· Prescribes the following for a 3rd violation during a one-year period:

Makes a 3rd violation a Class 1 misdemeanor and requires the court to sentence the employer to the maximum sentence.

Allows the court to order the employer’s license be suspended/revoked on conviction.

Requires the court to order the employer to pay an additional assessment of $6,000 per employee that the employer hired and knowingly failed to comply with the employment laws.

Deposits 50% of the monies from the assessment into the general fund.

Deposits the other 50% of the monies in the:

Ø State general fund if the AG initiated the action, or
Ø County general fund if the County Attorney initiated the action, or
Ø City or town general fund if the city or town attorney initiated the action.

Requires the employer to pay an additional assessment equal to three times the amount of revenue lost to the state because of the violation. Deposits these monies in the general fund.

States that the enforcement agency must record the judgment as a lien against the employer.

Provides that these penalties are in addition to any other penalties allowed under law.

· States that the penalties under this new section are in addition to any other penalties that may be imposed by law.

· Prohibits law enforcement authorities from providing incentives to officers for investigating alleged violations of this section.

· Expands the duties of the Director of the Department of Administration to include verifying the authorization for employment in the U.S. of every state employee through the Program or a successor program.

Licensing

· Requires an applicant for any license received from a state agency/political subdivision to provide a signed affirmation that the applicant has complied with all federal and state laws regarding the authorization for employment in the US for all employees of the applicant.

· Prohibits an agency or political subdivision from issuing a license to any applicant who fails to submit the signed affirmation.

· Provides that beginning January 1, 2007, each agency/political subdivision that issues licenses must conduct annual random audits of up to 5% of all persons issued a license to determine if they are knowingly employing unauthorized workers.

· Prohibits an agency/political subdivision from simultaneously conducting a separate audit of a person if an agency/political subdivision is already conducting an audit of that person.

· Requires the audit to consist of the following:

The agency reviewing the signed affirmation

The agency reviewing the completed I-9 eligibility forms retained by the employer

· Allows the audit to also consist of a verification of the employment authorization of the person’s employees through the Program and the person’s compliance with federal and state laws regarding lawful employment.

· States that if the audit determines that a person knowingly employs an unauthorized worker, the agency must notify the AG. Upon notification, the AG must immediately:

Order the person to cease and desist from employing the unauthorized worker and discharge any other unauthorized worker. The AG must confirm that the employer received the cease and desist order through an appropriate method.

Notify the United States Immigration and Customs Enforcement

· Requires the person to comply with the cease and desist order within ten business days after the AG confirms that the person received the order.

· Allows the AG to assess a civil penalty of $5,000 against any person who fails to comply with the cease and desist order within ten business days.

· Provides that the agency or AG may bring a civil cause of action to have the person’s license suspended or revoked if the person fails to comply with the cease and desist order.

· Provides the following list of circumstances that unless satisfactorily explained, may give rise to the inference that an employer knowingly employed an unauthorized worker if:

The employer pays the employee with cash instead of by check or automatic deposit.

The employer uses the services of a person who is either known to be or acting in concert with others who are violating Title 13, Chapter 23 (Organized crime, fraud and terrorism).

The employer violates the minimum wage requirements of the Fair Labor Standards Act.

The employer accepts a consular identification card issued by a foreign government as a form of identification when determining the employee’s identity.

Immigration Ombudsman-Citizens Aide

· Requires the Ombudsman-Citizens Aide to appoint an Immigration Ombudsman-Citizens Aide to receive complaints and provide immigration information to employers. Provides that the Immigration Ombudsman Citizens Aide serves at the pleasure of the Ombudsman-Citizens Aide.

· Requires the Immigration Ombudsman-Citizens Aide to:

Forward complaints indicating that employers are employing unauthorized workers to the AG.

Provide employers with information that helps them comply with the federal immigration laws, including assistance on enrolling in and using the Program.

· Appropriates $100,000 and 1 Full-Time Employee (FTE) position in FY 2006-2007 to the Ombudsman-Citizens Aide for the purpose of Immigration Ombudsman-Citizens Aide and exempts the apppropriation from lapsing.

Miscellaneous

· Adds any amount of salary/compensation paid to an unauthorized worker that is deducted as a business expense to the Arizona gross income for the purpose of computing Arizona adjusted gross income.

· Defines agency, employer, basic pilot program, enforcement agency, unauthorized worker, license and sanction.

· Contains a severability clause.

· Allows this act to be known as the “Fair and Legal Employment Act.”

· Directs the Secretary of State to submit this proposition to the voters at the next general election.

· Makes technical and conforming changes.

Arizona Capitol Update

Wednesday, June 7, 2006

Proposed Illegal Immigration Legislation

Tuesday, June 6, 2006

Legislative Update

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