GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2009

S                                                                                                                                                     1

SENATE BILL 32

 

 

Short Title:        Employers Must Use Federal E-Verify Program.

(Public)

Sponsors:

Senators Snow;  Allran, Apodaca, Atwater, Berger of Franklin, Blake, Boseman, Davis, Goss, Hoyle, Jacumin, McKissick, Nesbitt, Queen, Rand, Swindell, Tillman, and Vaughan.

Referred to:

Commerce.

February 4, 2009

A BILL TO BE ENTITLED

AN ACT to require that employers in this state use the federal e-verify program or a similar verification of work authorization program; and to appropriate funds to establish and support a position to assist in the implementation and execution of this act.

The General Assembly of North Carolina enacts:

SECTION 1.(a)  Article 5 of Chapter 153A of the General Statutes is amended by adding a new section to read:

" 153A-99.1.  County verification of employee work authorization.

(a)        Each county shall register and participate in the federal work authorization program to verify work authorization information of all new employees.

(b)        As used in this section, the term '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), Public Law 99-603.

(c)        This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin."

SECTION 1.(b)  Article 7 of Chapter 160A of the General Statutes is amended by adding a new section to read:

" 160A-169.1.  City verification of employee work authorization.

(a)        Each city shall register and participate in the federal work authorization program to verify work authorization information of all new employees.

(b)        As used in this section, the term '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), Public Law 99-603.

(c)        This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin."

SECTION 1.(c)  Article 2 of Chapter 153A of the General Statutes is amended by adding a new section to read:

" 153A-15.2.  Contractors must use federal work authorization program.

(a)        No county may enter into 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.

(b)        As used in this section, the term '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), Public Law 99-603."

SECTION 1.(d)  Article 2 of Chapter 160A of the General Statutes is amended by adding a new section to read:

" 160A-12.1.  Contractors must use federal work authorization program.

(a)        No city may enter into 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.

(b)        As used in this section, the term '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), Public Law 99-603."

SECTION 1.(e)  G.S. 143-129 is amended by adding a new subsection to read:

"(i)        No contract subject to this section may be awarded by any board or governing body of the State, institution of the State government, or any political subdivision of the State, unless the contractor registers and participates in the federal work authorization program to verify information of all new employees. As used in this subsection, the term '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), Public Law 99-603."

SECTION 2.(a)  Chapter 64 of the General Statutes is amended by adding a new Article to read:

"Article 1.

"Various Provisions Relating to Aliens."

SECTION 2.(b)  G.S. 64-1 through G.S. 64-5 are recodified as Article 1 of  Chapter 64 of the General Statutes, as created by this section.

SECTION 2.(c)  Chapter 64 of the General Statutes is amended by adding a new Article to read:

"Article 2.

"Employment of Unauthorized Aliens.

" 64-10.  Definitions.

The following definitions apply in this Article:

(1)        Agency. - Any agency, department, board, or commission of this State, a county, or city that issues a license for purposes of operating a business in this State.

(2)        Employ. - Hiring an employee after January 1, 2010.

(3)        Employee. - Any person who provides services or labor for an employer in this State for wages or other remuneration. This term does not include an independent contractor.

(4)        Employer. - Any individual or type of organization that transacts business in this State, that has a license issued by an agency in this State, and that employs one or more employees in this State. In the case of an independent contractor, the term means the independent contractor and does not mean the person or organization that uses the contract labor.

(5)        Federal work authorization program. - 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), Public Law 99-603.

(6)        Independent contractor. - Any individual or entity that carries on an independent business, that contracts to do a piece of work according to the individual's or entity's own means and methods and that is subject to control only as to results. Whether an individual or entity is an independent contractor is to be determined on a case-by-case basis through various factors including whether the individual or entity:

a.         Supplies the tools or materials.

b.         Makes services available to the general public.

c.         Works or may work for a number of clients at the same time.

d.         Has an opportunity for profit or loss as a result of labor or service provided.

e.         Invests in the facilities for work.

f.          Directs the order or sequence in which the work is completed.

g.         Determines the hours when the work is completed.

(7)        Intentionally. - With respect to a result or to particular conduct, acting with the objective of causing that result or engaging in that conduct.

(8)        Knowingly employ an unauthorized alien. - The actions described in 8 U.S.C. 1324a. This term shall be interpreted consistently with any applicable federal rules and regulations.

(9)        License. - Any agency permit, certificate, approval, registration, charter, or similar form of authorization that is required by law and that is issued by any agency for the purpose of operating a business in this State. This term does not include any professional license.

(10)      Social security number verification service. - The program administered by the Social Security Administration to verify the social security numbers of existing workers, or any of its successor program.

(11)      Unauthorized alien. - An alien who does not have the legal right or authorization under federal law to work in the United States as described in 8 U.S.C. 1324a(h)(3).

" 64-11.  Loss of business licenses for violations of federal immigration law.

Any agency or commission that issues a license shall, upon a showing of clear and convincing evidence, summarily revoke any license issued to any entity that has violated any federal immigration law that relates to the employment of unauthorized aliens. If any agency makes a finding to revoke a license pursuant to this section, no other agency shall be required to make a similar finding in order to revoke a license issued by it.

" 64-12.  Knowingly employing unauthorized alien prohibited; penalties.

(a)        An employer shall not knowingly employ an unauthorized alien. If, in the case when an employer uses a contract, subcontract, or other independent contractor agreement to obtain the labor of an alien in this State, the employer knowingly contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer violates this subsection.

(b)        The Attorney General shall prescribe a complaint form for a person to allege a violation of subsection (a) of this section. The complainant shall not be required to list the complainant's social security number on the complaint form or to have the complaint notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly knowingly employs an unauthorized alien, the Attorney General or county attorney shall investigate whether the employer has violated subsection (a) of this section. If a complaint is received but is not submitted on a prescribed complaint form, the Attorney General or county attorney may investigate whether the employer has violated subsection (a) of this section. This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form. The Attorney General or county attorney shall not investigate complaints that are based solely on race, color, or national origin. A complaint that is submitted to a county attorney shall be submitted to the county attorney in the county in which the alleged unauthorized alien is or was employed by the employer. The county sheriff or any other local law enforcement agency may assist in investigating the complaint. When investigating a complaint, the Attorney General or county attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 U.S.C. 1373(c). A State, county, or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to 8 U.S.C. 1373(c). A person who knowingly files a false and frivolous complaint under this subsection is guilty of a Class 2 misdemeanor.

(c)        If, after an investigation, the Attorney General or county attorney determines that the complaint is not false and frivolous:

(1)        The Attorney General or county attorney shall notify the United States Customs and Immigration Enforcement of the unauthorized alien.

(2)        The Attorney General or county attorney shall notify local law enforcement agencies of the unauthorized alien.

(3)        The Attorney General shall notify the appropriate county attorney to bring an action pursuant to subsection (d) of this section if the complaint was originally filed with the Attorney General.

(d)        An action for a violation of subsection (a) of this section shall be brought against the employer by the county attorney in the county where the unauthorized alien employee is or was employed by the employer. The county attorney shall not bring an action against any employer for any violation of subsection (a) that occurs before January 1, 2010. A second violation of this section shall be based only on an unauthorized alien who is employed by the employer after an action has been brought for a violation of subsection (a) of this section.

(e)        For a finding of a violation of subsection (a) of this section:

(1)        For a first violation as described in subdivision (3) of this subsection, the court:

a.         Shall order the employer to terminate the employment of all unauthorized aliens.

b.         Shall order the employer to be subject to a three-year probationary period for the business location where the unauthorized alien performed work. During the probationary period the employer shall file quarterly reports with the county attorney of each new employee who is hired by the employer at the business location where the unauthorized alien performed work.

c.         Shall order the employer to file a signed sworn affidavit with the county attorney within three business days after the order is issued. The affidavit shall state the employer has terminated the employment of all unauthorized aliens in this State and that the employer will not intentionally or knowingly employ an unauthorized alien in this State. The court shall order the appropriate agencies to suspend all licenses subject to this subdivision that are held by the employer if the employer fails to file a signed, sworn affidavit with the county attorney within three business days after the order is issued. All licenses that are suspended under this subdivision shall remain suspended until the employer files a signed, sworn affidavit with the county attorney. Notwithstanding any other provision of law, on filing of the affidavit, the suspended licenses shall be reinstated immediately by the appropriate agencies for the purposes of this subdivision. The licenses that are subject to suspension under this subdivision are all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension under this subdivision are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other provision of law, the appropriate agencies shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the Attorney General, and the Attorney General shall maintain the copy pursuant to subsection (f) of this section.

d.         May order the appropriate agencies to suspend all licenses described in sub-subdivision c. of this subdivision that are held by the employer for a period not to exceed 10 business days. The court shall base its decision to suspend under this sub-subdivision on any evidence or information submitted to it during the action for violation of this section and shall consider the following factors, if relevant:

1.         The number of unauthorized aliens employed by the employer.

2.         Any prior misconduct by the employer.

3.         The degree of harm resulting from the violation.

4.         Whether the employer made good faith efforts to comply with any applicable requirements.

5.         The duration of the violation.

6.         The role of the directors, officers, or principals of the employer in the violation.

7.         Any other factors the court deems appropriate.

(2)        For a second violation as described in subdivision (3) of this subsection, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other provision of law, the appropriate agencies shall immediately revoke the licenses.

(3)        The violation shall be considered:

a.         A first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this subsection.

b.         A second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this subsection.

(f)         The Attorney General shall maintain copies of court orders that are received pursuant to subsection (e) of this section and shall maintain a database of the employers and business locations that have a first violation of subsection (a) of this section and make the court orders available on the Attorney General's Web site.

(g)        On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 U.S.C. 1373(c). The federal government's determination creates a rebuttable presumption concerning the employee's legal status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to 8 U.S.C. 1373(c).

(h)        For the purposes of this section, proof of verifying the employment authorization of an employee through the federal work authorization program creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien.

(i)         For the purposes of this section, an employer who establishes that it has complied in good faith with the requirements of 8 U.S.C. 1324a(b) establishes an affirmative defense that the employer did not knowingly employ an unauthorized alien. For purposes of this subsection, an employer is considered to have complied with the requirements of 8 U.S.C. 1324a(b) notwithstanding any isolated, sporadic, or accidental technical or procedural failure to meet the requirements, so long as there is a good faith attempt to comply with the requirements.

" 64-13.  Article does not require action that is contrary to federal or State law.

This Article shall not be construed to require an employer to take any action that the employer believes in good faith would violate federal or State law.

" 64-14.  Employers must use federal work authorization program.

After December 31, 2009, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the federal work authorization program. Alternatively, verification may be made through a third party on behalf of an employer where permitted by federal law.

" 64-15.  Discharge of authorized employee while employer simultaneously employs an unauthorized alien is an unfair trade practice.

The discharge of any United States citizen or permanent resident alien employee by an employer of this State, who, on the date of the discharge, employed an unauthorized alien, shall be an unfair trade practice as defined in G.S. 75-1.1, and the discharged employee shall have a right of action under G.S. 75-16."

SECTION 3.  There is appropriated from the General Fund to the Office of the Attorney General of the Department of Justice the sum of eighty-three thousand dollars ($83,000) for the 2009-2010 fiscal year and the sum of eighty-three thousand dollars ($83,000) for the 2010-2011 fiscal year to establish and support a full-time attorney to assist in the implementation and execution of this act. Specifically, the attorney shall be responsible for acting as a liaison with the United States Department of Homeland Security and other agencies regarding the federal work authorization program, advising the Attorney General regarding this act, assisting employers to comply with this act, and assisting the Attorney General with enforcing this act.

SECTION 4.  Section 3 of this act becomes effective on July 1, 2009. The remainder of this act becomes effective January 1, 2010.