Bill H.1866

HOUSE DOCKET, NO. 2772 FILED ON: 1/19/2023

HOUSE . . . . . . . . . . . . . . . No. 1866

By Representative DeCoste of Norwell, a petition (accompanied by bill, House, No. 1866) of David F. DeCoste and Michael J. Soter relative to the verification of employment eligibility of employees through the federal employment authorization e-verify program. Labor and Workforce Development.

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 4162 OF 2021-2022.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act protecting Massachusetts workers.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Chapter 149 of the General Laws is hereby amended by striking out section 19C and inserting in place thereof the following section:-

Section 19C. (a) As used in this section, the following words shall, unless the context otherwise requires, have the following meanings:

“Agency”, any agency, department, board or commission of the commonwealth, a county, city or town that issues a license for purposes of operating a business.

“E-verify program”, the federal employment authorization verification program as jointly administered by the United States Department of Homeland Security and the Social Security Administration or any of its successor programs.

“Economic development incentive”, any grant, loan or performance-based incentive from any government entity awarded after January 1, 2022.

“Employee”, any person who provides services or labor for an employer for wages or other remuneration, excluding independent contractors.

“Employer”, any individual or type of organization that transacts business in the commonwealth, has a license issued by an agency in the commonwealth and employs 1 or more employees in this state. Employer shall include, but not be limited to, the commonwealth, any political subdivision thereof and self-employed persons. In the case of an independent contractor, employer shall mean the independent contractor and shall not mean the person or organization that uses the contract labor.

“Government entity”, the commonwealth and any political subdivision thereof that receives and uses tax revenues.

“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. An independent contractor shall include an individual who performs services and is not an employee pursuant to section 3508 of the Internal Revenue Code. Whether an individual or entity is an independent contractor shall be determined on a case-by-case basis through various factors, including whether the individual or entity:

(1) supplies the tools or materials;

(2) makes services available to the general public;

(3) works or may work for a number of clients at the same time;

(4) has an opportunity for profit or loss as a result of labor or service provided;

(5) invests in the facilities for work;

(6) directs the order or sequence in which the work is completed; or

(7) determines the hours when the work is completed.

“Intentionally”, with respect to a result or to conduct described in this section defining an offense, that a person’s objective is to cause that result or to engage in that conduct.

“Knowingly employ an unauthorized alien”, to act in a manner described in 8 U.S.C. 1324a. This term shall be interpreted consistently with said 8 U.S.C. 1324a and any applicable federal rules and regulations.

“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 purposes of operating a business in this state, including, but not limited to:

(1) articles of incorporation;

(2) certificates of limited partnership under section 8 of chapter 109;

(3) grants of authority issued under section 15.03 of chapter 156D; and

(4) sales and use tax certificates;

But shall not include:

(5) licenses issued pursuant to water or environmental regulations; and

(6) professional licenses.

“Social security number verification service”, the social security number verification service program administered by the Social Security Administration or any of its successor programs.

“Unauthorized alien”, as defined by 8 U.S.C. 1324a(h)(3). This term shall be interpreted consistently with said 8 U.S.C. 1324a(h)(3) and any applicable federal rules and regulations.

(b)(1) After hiring an employee, an employer shall verify the employment eligibility of the employee through the e-verify program.

(2) No employer shall intentionally or knowingly employ an unauthorized alien. If, when an employer uses a contract, subcontract or other independent contractor agreement to obtain the labor of an alien in the state, the employer intentionally or knowingly contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer shall violate this subsection.

(c) The attorney general shall prescribe a complaint form for a person to allege a violation of subsection (b). The complainant shall not be required to list the complainant's social security number on the complaint form or to have the complaint form notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly failed to verify the employment eligibility of an employee through the e-verify program, or intentionally or knowingly employed an unauthorized alien, the attorney general or district attorney shall investigate whether the employer has violated subsection (b). If a complaint is received but is not submitted on a prescribed complaint form, the attorney general or district attorney may investigate whether the employer has violated subsection (b). 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 district attorney shall not investigate complaints that are based solely on race, color or national origin. A complaint that is submitted to a district attorney shall be submitted to the district 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 a complaint. When investigating a complaint, the attorney general or district attorney shall verify the work authorization of any 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). Whoever knowingly files a false and frivolous complaint shall be punished by a fine of not more than $500, or by imprisonment of not more than 30 days, or both.

(d) If, after an investigation, the attorney general or district attorney determines that the complaint is not false and frivolous:

(1) the attorney general or district attorney shall notify the United States Immigration and Customs Enforcement of any unauthorized alien;

(2) the attorney general or district attorney shall notify the local law enforcement agency of any unauthorized alien; and

(3) the attorney general shall notify the appropriate district attorney to bring an action pursuant to subsection (e) if the complaint was originally filed with the attorney general.

(e) An action for a violation of subsection (b) shall be brought against the employer by the district attorney in the county where the violation is alleged to have occurred. The district attorney shall not bring an action against any employer for any violation of subsection (b) that is alleged to have occurred before January 1, 2022.

(f) For any action in superior court under this section, the court shall expedite the action, including assigning the hearing at the earliest practicable date.

(g) On a finding of a violation of subsection (b):

(1) For a first violation, as described in paragraph (3), the court:

(i) shall order the employer to terminate the employment of all unauthorized aliens;

(ii) shall order the employer to be subject to a 3 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 district attorney demonstrating compliance with subsection (b) with respect to each new employee who is hired by the employer at the business location where the violation occurred;

(iii) shall order the employer to file a signed sworn affidavit with the district attorney within 3 business days after the order is issued. The affidavit shall state that the employer shall verify the employment eligibility of all new employees through the e-verify program, that the employer has terminated the employment of all unauthorized aliens in the commonwealth and that the employer will not intentionally or knowingly employ an unauthorized alien in the commonwealth. The court shall order the appropriate agencies to suspend all licenses subject to this clause that are held by the employer if the employer fails to file a signed sworn affidavit with the district attorney within 3 business days after the order is issued. All licenses that are suspended under this clause shall remain suspended until the employer files a signed sworn affidavit with the district attorney. Notwithstanding any other general or special law to the contrary, on filing of the affidavit the suspended licenses shall be reinstated immediately by the appropriate agencies. For the purposes of this clause, the licenses subject to suspension shall be 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 violation occurred, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension shall be 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 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 (h); and

(iv) may order the appropriate agencies to suspend all licenses described in clause (iii) that are held by the employer for not longer than 10 business days. The court shall base its decision to suspend on any evidence or information submitted to the court during the action for a violation and shall consider the following factors, if relevant:

(A) number of unauthorized aliens employed by the employer;

(B) prior misconduct by the employer;

(D) whether the employer made good faith efforts to comply with any applicable requirements;

(E) duration of the violation;

(F) role of the directors, officers or principals of the employer in the violation; and

(G) other factors the court deems appropriate.

(2) For a second violation, as described in paragraph (3), 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 violation occurred. If the employer does not hold a license specific to the business location where the violation occurred, 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 law, the appropriate agencies shall immediately revoke the licenses.

(3) The violation shall be considered:

(i) 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 for that employer's business location.

(ii) 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 for that employer's business location.

(h) The attorney general shall maintain copies of court orders that are received pursuant to subsection (g), shall maintain a database of the employers and business locations that have a first violation of subsection (b) and make the court orders available on the attorney general's website.

(i) 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 shall create a rebuttable presumption of the employee's lawful 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).

(j) For the purposes of this section, proof of verifying the employment authorization of an employee through the e-verify program creates a rebuttable presumption that an employer did not intentionally or knowingly employ an unauthorized alien.

(k) For the purposes of this subsection, an employer that 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 intentionally or knowingly employ an unauthorized alien. An employer is considered to have complied with the requirements of 8 U.S.C. 1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to meet the requirements, if there is a good faith attempt to comply with the requirements.

(l) This section 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.

(m) In addition to any other requirement for an employer to receive an economic development incentive from a government entity, the employer shall register with and participate in the e-verify program. Before receiving the economic development incentive, the employer shall provide proof to the government entity that the employer is registered with and is participating in the e-verify program. If the government entity determines that the employer is not complying with this subsection, the government entity shall notify the employer by certified mail of the government entity's determination of noncompliance and the employer's right to appeal the determination. On a final determination of noncompliance, the employer shall repay all monies received as an economic development incentive to the government entity within 30 days of the final determination.

(n) Every 3 months the attorney general shall request from the United States Department of Homeland Security a list of employers from the commonwealth that are registered with the e-verify program. On receipt of the list of employers, the attorney general shall make the list available on the attorney general's website.

(o) The attorney general shall develop a statewide random auditing program to inspect employers for compliance with the provisions of this section and shall promulgate regulations governing the implementation of the audit program.

Name:	District/Address:	Date Added:
David F. DeCoste	5th Plymouth	1/19/2023
Michael J. Soter	8th Worcester	1/30/2023