Amendment #427 to H.4100

Amendment #427 to H4100

Illegal Immigration and Employment Related Issues

Representatives Jones of North Reading, Peterson of Grafton, Hill of Ipswich, Poirier of North Attleborough, deMacedo of Plymouth, Adams of Andover, Barrows of Mansfield, Bastien of Gardner, Beaton of Shrewsbury, Boldyga of Southwick, D'Emilia of Bridgewater, Diehl of Whitman, Durant of Spencer, Fattman of Sutton, Ferguson of Holden, Frost of Auburn, Gifford of Wareham, Howitt of Seekonk, Humason of Westfield, Hunt of Sandwich, Kuros of Uxbridge, Levy of Marlborough, Lombardo of Billerica, Lyons of Andover, O'Connell of Taunton, Orrall of Lakeville, Ross of Attleboro, Vieira of Falmouth, Webster of Pembroke, Winslow of Norfolk, Wong of Saugus, Harrington of Groton and Smola of Palmer move to amend the bill, by inserting after SECTION XX, the following sections:—

“SECTION XX. The General Laws are hereby amended by inserting after chapter 30B the following:—

Chapter 30C. PUBLIC CONTRACT INTEGRITY

Section 1. For the purposes of this chapter, the following terms shall be defined as follows:

‘Public employer’: any department, agency, or public instrumentality of the commonwealth and any person, corporation, partnership, sole proprietorship, joint venture, or other business entity providing goods or services to any department, agency or public instrumentality of the commonwealth, including but not limited to the Massachusetts Turnpike Authority, Massachusetts Water Resources Authority, Massachusetts Port Authority, and the Massachusetts Bay Transportation Authority.

‘Work authorization program’: any of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or any equivalent work authorization program operated by the United States Department of Homeland Security, the United States Department of Labor, the Social Security Administration, other federal agency, or any private verification system authorized by the director of the department of labor to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA) and its progeny.

Section 2. No public employer shall enter into a contract for the provision of goods or services within the commonwealth unless the contractor registers and participates in a work authorization program to verify information of all new employees and certifies to that effect in writing to the director of the department of labor.

Section 3. No contractor or subcontractor who enters a contract with a public employer shall enter into such a contract or subcontract in connection with the provision of goods or services in the commonwealth unless the contractor or subcontractor registers and participates in a work authorization program to verify information of all employees and certifies to that effect in writing to the director of the department of labor.

Section 4. Sections 2 and 3 of this chapter shall apply as follows:

(A) On or after September 1, 2012, with respect to public employers, contractors, or subcontractors of 500 or more employees;

(B) On or after September 1, 2013, with respect to public employers, contractors, or subcontractors of 100 or more employees; and

Section 5. The provisions of this chapter shall be enforced without regard to race, religion, gender, ethnicity, or national origin.

Section 6. Except as provided in section 4 of this chapter, the director of the department of labor shall prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate the provisions of this chapter.

Section 7. The Attorney General, in consultation with the Inspector General, shall develop and promulgate regulations for the purpose of ensuring that any person receiving funds pursuant to a contract awarded subject to the provisions of chapter 30B and section 44A of chapter 149 of the general laws is in compliance with federal laws pertaining to immigration and citizenship, including but not limited to 42 U.S.C. 1436(a). Such regulations shall include but not be limited to the ascertaining and verification of immigration and/or citizenship status through a work authorization program maintained by the United States Department of Homeland Security or its substantial equivalent.

Section 8. No contract shall be awarded by or to a public employer, and no public funds shall be expended in accordance with such a contract, unless the public employer named in the contract complies with the regulations prescribed in this chapter.

Section 9. No funds shall be expended in accordance with a contract awarded by or to a public employer which will result in the payment of any kind to a person not in compliance with any and all federal laws pertaining to immigration and citizenship, including but not limited to 42 U.S.C. 1436(a).

Section 10. The auditor is hereby authorized to conduct random audits to ensure compliance with the provisions of this chapter.

SECTION XX. Chapter 149 of the General Laws is hereby amended by striking section 19C in its entirety and inserting in place thereof the following:—

Section 19C. (a) An employer shall not knowingly employ an unauthorized alien. The term, unauthorized alien, shall mean 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). If, in the case when an employer uses a contract, subcontract or other independent contractor agreement to obtain the labor of an alien in the commonwealth, 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). 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. Upon receipt of a complaint that an employer allegedly knowingly employs an unauthorized alien, the attorney general or district attorney shall investigate whether the employer has violated subsection (a). If a complaint is received but is not submitted on said prescribed form, the attorney general or district attorney may investigate whether the employer has violated subsection (a). This 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 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 independently to 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 such fine and imprisonment.

(c) 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 the presence of the unauthorized alien;

(2) The attorney general or district attorney shall notify the United States Immigration and Customs Enforcement of the employer’s alleged employment of unauthorized workers;

(3) The attorney general or district attorney shall notify the Department of Revenue of the employer’s alleged employment of unauthorized workers;

(4) The attorney general or district attorney shall notify the local law enforcement agency of the unauthorized alien;

(5) The attorney general shall notify the appropriate district attorney to bring an action pursuant to subsection (d) if the complaint was originally filed with the attorney general;

(d) An action for a violation of subsection (a) shall be brought against the employer by the district attorney in the county where the unauthorized alien employee is or was employed by the employer. A Level II violation shall be based only on an unauthorized alien who is or was employed by the employer after an action has been brought for a violation of subsection (a) or subsection (k). An employer shall not be subject to a Level II violation unless is currently on probation for a Level I violation.

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

(f) On a finding of a violation of subsection (a):

(1) For a Level I, or a violation which does not occur during a probationary period ordered by the court, the court:

i. Shall order the employer to terminate the employment of all unauthorized aliens; and

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 of each new employee who is hired by the employer at the business location where the unauthorized alien performed work; and

iii. Shall order the employer to file a sworn affidavit with the district attorney within 3 business days after the order is issued. The affidavit shall state 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 state agencies to suspend all licenses subject to this clause that are held by the employer if the employer fails to file a 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 such time as the employer files a sworn affidavit with the district attorney. Notwithstanding any general or special law to the contrary, upon filing of the affidavit the suspended licenses shall be reinstated immediately by the appropriate state agencies. For the purposes of this clause, the licenses that shall be subject to suspension 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 are all licenses that are held by the employer at the employer’s primary place of business. Upon receipt of the order, the appropriate state agencies shall immediately revoke the licenses. 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 (g); and

iv. May order the appropriate state agencies to suspend all licenses described in clause (iii) that are held by the employer for a period not to exceed 10 business days. The court shall base its decision to suspend on any evidence or information submitted to it 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;

c. Degree of harm resulting from the violation;

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;

g. Other factors that the court deems appropriate.

(2) For a Level II violation, or a violation which occurs during a probationary period ordered by the court, the court shall order the appropriate state 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 state agencies to permanently revoke all licenses that are held by the employer at the employer’s primary place of business. Upon receipt of the order, the appropriate state agencies shall immediately revoke the licenses.

(g) The attorney general shall maintain copies of court orders that are received pursuant to subsection (f) and shall maintain a database of the employers and business locations that have a Level I of subsection (a) and make the court orders available on the attorney general’s website.

(h) When 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 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).

(i) For the purposes of this subsection, proof of verifying the employment authorization of an employee through available federal resources creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien.

(j) 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 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.

(k) An employer shall not intentionally 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 the commonwealth, the employer intentionally 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.

(l) The attorney general shall prescribe a complaint form for a person to allege a violation of subsection (k). 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. Upon receipt of a complaint that an employer allegedly intentionally employs an unauthorized alien, the attorney general or district attorney shall investigate whether the employer has violated subsection (k). If a complaint is received but is not submitted on said prescribed form, the attorney general or district may investigate whether the employer has violated subsection (k). This 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 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 independently to 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 such fine and imprisonment.

(m) 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 the presence of the unauthorized alien;

(2) The attorney general or district attorney shall notify the United States Immigration and Customs Enforcement of the employer’s alleged employment of unauthorized workers;

(3) The attorney general or district attorney shall notify the Department of Revenue of the employer’s alleged employment of unauthorized workers;

(4) The attorney general or district attorney shall notify the local law enforcement agency of the unauthorized alien;

(5) The attorney general shall notify the appropriate district attorney to bring an action pursuant to subsection (n) if the complaint was originally filed with the attorney general;

(n) An action for a violation of subsection (k) shall be brought against the employer by the district attorney in the county where the unauthorized alien employee is or was employed by the employer. A Level II violation shall be based only on an unauthorized alien who is or was employed by the employer after an action has been brought for a violation of subsection (k) or subsection (a).

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

(p) On a finding of a violation of subsection (k):

(1) For a Level I violation, or a violation which does not occur during a probationary period ordered by the court, the court shall:

i. Order the employer to terminate the employment of all unauthorized aliens; and

ii. Order the employer to be subject to a 5 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 of each new employee who is hired by the employer at the business location where the unauthorized alien performed work; and

iii. Order the employer to file a sworn affidavit with the district attorney within 3 business days after the order is issued. The affidavit shall state 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 state agencies to suspend all licenses subject to this clause that are held by the employer if the employer fails to file a 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 such time as the employer files a sworn affidavit with the district attorney. Notwithstanding any general or special law to the contrary, upon filing of the affidavit the suspended licenses shall be reinstated immediately by the appropriate state agencies. For the purposes of this clause, the licenses that shall be subject to suspension 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 are all licenses that are held by the employer at the employer’s primary place of business. Upon receipt of the order, the appropriate state agencies shall immediately revoke the licenses. 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 (q).

iv. Order the appropriate state agencies to suspend all licenses described in clause (iv) that are held by the employer for a period not to exceed 10 business days. The court shall base its decision to suspend on any evidence or information submitted to it 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;

c. Degree of harm resulting from the violation;

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;

g. Other factors that the court deems appropriate; and

(q) The attorney general shall maintain copies of court orders that are received pursuant to subsection (p) and shall maintain a database of the employers and business locations that have a Level I violation of subsection (k) and make the court orders available on the attorney general’s website.

(r) When 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 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).

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

(t) For the purposes of this section, 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 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.

SECTION XX. Notwithstanding any general or special law to the contrary, when issuing periodic notices to taxpayers and registered businesses, the department of revenue shall include information illustrating the risks of employing or contracting with unauthorized workers. Said notice shall include the estimated costs to public safety, the strains placed upon the health safety net, the potential for personal liability, the impacts upon local school budgets, the impact upon the job market, and the availability of quality housing.”