Employment-based Immigration Laws Passed by States in 2008
From January 1, 2008 through November 30, 2008, no fewer than 1305 pieces of legislation related to immigration had been introduced in 45 state legislatures, with a total of 205 laws and resolutions enacted in 41 states nationwide, according to a December 18 report issued by the National Conference of State Legislatures (NCSL). Thirteen states (Alaska, Arizona, Colorado, Florida, Idaho, Maryland, Missouri, Mississippi, Pennsylvania, Tennessee, Virginia, Washington, and West Virginia) enacted a total of 19 immigration laws relating solely to employment and another three states —Missouri, South Carolina and Utah —passed omnibus immigration laws, which included employment and business licensing provisions. According to the report, the 2008 level of activity is comparable to last year when 1,562 bills were introduced and 240 laws were enacted. As in recent years, the top three areas of interest among the states are: identification/driver’s licenses, employment and law enforcement.
"The economy is the Number 1 issue affecting states, but immigration remains a hot-button topic debated in many legislatures across the country," said William T. Pound, NCSL executive director. "Coincidentally, several states commissioned studies to investigate the economic and fiscal impacts of immigration, including state remedies to recover money owed to the state by the federal government."
According to the NCSL, many of the enacted employment laws from the states provide for employer sanctions related to the hiring of unauthorized workers, employment eligibility verification requirements and penalties. These laws also include measures on unemployment benefits and one state (Colorado) has a state-based guestworker pilot program.
In 2008, Missouri, South Carolina and Utah enacted omnibus immigration laws, which included employment and business licensing provisions.
Missouri. Missouri Governor Matt Blunt (R) signed the state’s comprehensive immigration reform bill (H.R. 1549) into law on July 7. In a press release issued by Blunt’s office, he characterized the bill’s provisions "as some of the strongest legislation in the country to fight illegal immigration." The bill, a conference committee substitute, passed in the state legislature May 16. The Pew Hispanic Center estimates that 35,000 to 65,000 illegal immigrants live in Missouri.
Among its employment provisions, the bill requires state agencies, local governments and businesses that contract with the state (in excess of $5,000) or that receive tax credits to participate in E-Verify. E-Verify is the voluntary web-based program operated by the Department of Homeland Security’s US Citizenship and Immigration Services bureau in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their newly hired employees. More information on E-Verify can be found at: http://www.dhs.gov/ximgtn/programs/gc_1185221678150.shtm EXE: http://www.dhs.gov/ximgtn/programs/gc_1185221678150.shtm. Participation in E-Verify is an affirmative defense that the agency or contractor has not knowingly employed, recruited, hired for employment, or continued to employ an unauthorized alien to perform work within the state of Missouri. The law also encourages private employers to use E-Verify as well by offering it as a defense if the employer is found to employ undocumented workers.
All employers who employ undocumented workers are subject to the suspension of their business permits and licenses or exemptions. If an employer is found to have knowingly hired an undocumented worker, its licenses can be suspended for 14 days. Permits, licenses and exemptions will be reinstated for entities who comply at the end of the fourteen day period by: (1) terminating the undocumented worker; or (2) requesting a second verification from the federal government, signing a sworn affidavit stating that the violation has ended and submitting documentation confirming the entity is enrolled in a federal work authorization program. A second violation results in the suspension of the employer’s business permits and licenses or exemptions for one year. Subsequent violations can result in permanent revocation of the employer’s applicable licenses. State contractors may have their contracts voided and will be barred from contracting with the state for three years. Subsequent violations would result in a void contract and a permanent bar from contracting with the state. The state may withhold up to 25 percent of the total amount due to the business entity upon termination of the contract.
In addition, failing to provide identity information on employees within 15 business days after receipt of a request from the attorney general will result in the suspension of a company’s applicable local licenses, permits and exemptions until the information is supplied.
The bill’s employment provisions take effect January 1, 2009.
The bill also bars employers with five or more employees performing public works from knowingly misclassifying employees as independent contractors. The attorney general would have the power to investigate alleged misclassifications. Injunctions may be sought and employers would be charged $50 per day per misclassified worker up to a maximum of $50,000 for violations. When workers are contractors, employers do not have to pay withholding taxes or provide other benefits. The bill can be found at: http://www.house.mo.gov/billtracking/bills081/bills/hb1549.htm EXE: http://www.house.mo.gov/billtracking/bills081/bills/hb1549.htm.
South Carolina. Ending months of competing proposals and fierce debate between the two chambers of the legislature, South Carolina enacted legislation requiring employers to verify the legal status of their new hires using the federal government's E-Verify program or with a South Carolina driver's license. Called the South Carolina Illegal Immigration Reform Act (H. 4400), Governor Mark Sanford signed the bill into law on June 4, 2008.
Provisions. Among the law's employment-related provisions, all public employers (every department, agency, or instrumentality of the state or a political subdivision of the state) are required to register and participate in E-Verify or by employing only workers who possess a valid South Carolina driver’s license or identification card issued by the South Carolina Department of Motor Vehicles (or a license from a state with requirements at least as strict as South Carolina).
Contractors and subcontractors doing business (entering into a services contract) in South Carolina also must verify their new employees' legal status by using either E-Verify program or by employing only workers who possess a valid South Carolina driver's license or identification card issued by the South Carolina Department of Motor Vehicles (or a license from a state with requirements at least as strict as South Carolina). The Act does not apply to contracts worth less than $15,000 for political subdivisions and $25,000 for other public employers. In addition, the Act does not apply to contracts primarily for the acquisition of an end product and contracts predominantly for professional or consultant services. Contractors also must provide a written statement verifying compliance, though the public employer need not audit or independently verify compliance by the contractor.
Contractors with public employers and subcontractors with five hundred or more employees must comply with the Act's verification requirements by January 1, 2009. For those with 100 to 500 employees, they Act takes effect July 1, 2009. For everyone else, the law takes effect on and after January 1, 2010.
Private employers. All private employers (who are required by federal law to complete and maintain federal employment eligibility verification forms) with more than 100 employees (and their contractors and subcontractors) also must, by July 1, 2009, either use E-Verify to verify their new employees' legal status or employ only workers who possess a valid South Carolina driver's license or identification card issued by the South Carolina Department of Motor Vehicles (or a license from a state with requirements at least as strict as South Carolina). Private employers with less than 100 employees must begin verifying their employees starting July 1, 2010.
In addition, there is now a general requirement in the Act stating that a private employer must not knowingly or intentionally employ a person who is not lawfully present in the US.
Requirements and penalties. Employers who elect to verify a new employee's work authorization using E-Verify will provisionally employ a new employee until his work authorization has been verified. Employers would have five days from the time the employee is hired before having to verify a new employee's work authorization using E-Verify. If the new employee's work authorization is not verified by the federal work authorization program, the private employer must not employ, continue to employ or re-employ the employee.
The South Carolina Director of the Department of Labor, Licensing and Regulation will send written notice of the requirements of the Act, including a list of states with driver's license requirements at least as strict as those in South Carolina, to all South Carolina employers no later than January 1, 2009, and will publish the information contained in the notice on its website.
The Act includes fines for recordkeeping violations of not less than $100 and not more than $1,000 for each violation. However, if the employer, on a first offense, verifies the employee within 72 hours of the violation, it can avoid a penalty. The violation would still be reported to federal officials.
The Act also creates a no-fee, no application necessary, implied South Carolina employment license, permitting all private employers to hire new employees. The license stays in effect as long as the business abides by the hiring requirements established in the South Carolina Illegal Immigration Reform Act. The employment license could be suspended or revoked if an employer is found to have hired undocumented workers. Should an investigation reveal that an employer knowingly hired undocumented workers, the employer's license can be suspended for at least 10 days but not more than 30 days for a first offense. During the period of suspension, the employer may not employ a new employee. For a second offense, the employer's license must remain suspended for at least 30 days but not more than 60 days. A third offense would result in the revocation of the employer's business license for at least five years. Employers would have to pay a fine of $1,000 to reinstate their business license.
Employees who are replaced by undocumented workers when their private employer knows the replacement worker is undocumented have a civil right of action for wrongful termination under the Act. The replacement must have occurred within 60 days of the termination, the replacement worker must not have been documented at the time of the replacement, the employer must have known the replacement worker's status and the replacement worker must perform the same duties and have the same responsibilities as the terminated employee. Employees successful in such a suit can seek reinstatement in the position, actual damages and attorney fees. The claim must be made within a year of the date of the alleged violation.
Utah. Governor Jon Huntsman Jr. signed Utah’s comprehensive immigration bill (S.B. 81) into law on March 13, 2008. Effective July 1, 2009, Utah’s law, which has been compared to Oklahoma's comprehensive Taxpayer and Citizen Protection Act of 2007 (H.B. 1804), will require public entities to enroll in E-Verify or another employment verification system to verify the eligibility of their new employees. In addition, public employers may not enter into contracts with the state unless they register with and use a verification system to verify the work eligibility of a contractor's new eligibility. Further, it would also be a discriminatory practice under the law for any employer to discharge a US citizen or legal permanent resident employee while retaining an illegal alien hired in a comparable position if the employer reasonably knows that the retained employee was undocumented. A copy of the immigration law can be found at: http://le.utah.gov/~2008/bills/sbillenr/sb0081.pdf EXE: http://le.utah.gov/~2008/bills/sbillenr/sb0081.pdf.
The NCSL report can be found at:http://www.ncsl.org/print//immig/State%20Immigration%20Report%20December%2018%202008.pdf
Reprinted with permission. © CCH
(Submitted Jan. 1, 2009)
<p>Employment based Immigration Laws Passed by States in 2008 From January 1, 2008 through November 30, 2008, no fewer than 1305 pieces of legislation related to immigration had been introduced in 45 state legislatures, with a total of 205 laws and</p>