FIRST REGULAR SESSION
95TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES WILDBERGER (Sponsor), SCHIEFFER, MEINERS, MEADOWS AND ROORDA (Co-sponsors).
0355L.01I D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal section 285.535, RSMo, and to enact in lieu thereof one new section relating to unauthorized aliens.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Section 285.535, RSMo, is repealed and one new section enacted in lieu thereof, to be known as section 285.535, to read as follows:
285.535. 1. The attorney general shall enforce the requirements of sections 285.525 to 285.550.
2. An enforcement action shall be initiated by means of a written, signed complaint under penalty of perjury as defined in section 575.040, RSMo, to the attorney general submitted by any state official, business entity, or state resident. A valid complaint shall include an allegation which describes the alleged violator as well as the actions constituting the violation, and the date and location where such actions occurred. A complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced. A business entity that is the subject of an investigation shall cooperate in the investigation and the attorney general or prosecuting attorney shall have subpoena powers to obtain records or testimony related to the investigation.
3. Upon receipt of a valid complaint, the attorney general shall, within fifteen business days, request identity information from the business entity regarding any persons alleged to be unauthorized aliens. Such request shall be made by certified mail. The attorney general shall direct the applicable municipal or county governing body to suspend any applicable license, permit, or exemptions of any business entity which fails, within fifteen business days after receipt of the request, to provide such information.
4. The attorney general, after receiving the requested identity information from the business entity, shall submit identity data required by the federal government to verify, under 8 U.S.C. 1373, the immigration status of such persons, and shall provide the business entity with written notice of the results of the verification request:
(1) If the federal government notifies the attorney general that an employee is authorized to work in the United States, the attorney general shall take no further action on the complaint;
(2) If the federal government notifies the attorney general that an employee is not authorized to work in the United States, the attorney general shall proceed on the complaint as provided in subsection 5 of this section;
(3) If the federal government notifies the attorney general that it is unable to verify whether an employee is authorized to work in the United States, the attorney general shall take no further action on the complaint until a verification from the federal government concerning the status of the individual is received. At no point shall any state official attempt to make an independent determination of any alien's legal status without verification from the federal government.
5. (1) If the federal government notifies the attorney general that an employee is not authorized to work in the United States, and the employer of the unauthorized alien participates in a federal work authorization program, there shall be a rebuttable presumption that the employer has met the requirements for an affirmative defense under subsection 4 of section 285.530, and the employer shall comply with subsection [6] 9 of this section.
(2) If the federal government notifies the attorney general that an employee is not authorized to work in the United States, the attorney general shall bring a civil action in Cole County if the attorney general reasonably believes the business entity knowingly violated subsection 1 of section 285.530:
(a) If the court finds that a business entity did not knowingly violate subsection 1 of section 285.530, the employer shall have fifteen business days to comply with subdivision (1) and paragraph (a) of subdivision (2) of subsection [6] 9 of this section. If the entity fails to do so, the court shall direct the applicable municipal or county governing body to suspend the business permit, if such exists, and any applicable licenses or exemptions of the entity until the entity complies with subsection [6] 9 of this section;
(b) If the court finds that a business entity knowingly violated subsection 1 of section 285.530, the court shall direct the applicable municipal or county governing body to suspend the business permit, if such exists, and any applicable licenses or exemptions of such business entity for [fourteen] up to fifteen days. In determining the appropriate time period, the court shall consider the following factors:
a. Number of unauthorized aliens employed;
b. Degree of harm resulting from the violation;
c. Whether the employer made good faith efforts to comply with any applicable requirements;
d. Duration of the violation;
e. Participation of directors, officers, or principals of the employer in the violation;
f. Any other factors the court deems appropriate.
Permits, licenses, and exemptions shall be reinstated for entities who comply with subsection [6] 9 of this section at the end of the [fourteen-day] time period.
6. If a court determines that an employer knowingly employed an unauthorized alien it shall, for the first violation:
(1) Order the business entity to a three-year probationary period which shall begin on the date the court enters the order;
(2) Order the business entity to file, during the probationary period, quarterly reports with the attorney general of each new employee who is hired by the business entity;
(3) Order the business entity to file a sworn affidavit with the court and the attorney general within three business days after the order is entered. The affidavit shall state the business entity has terminated the employment of all unauthorized aliens and the business entity will not knowingly employ an unauthorized alien.
Any agency that has issued a license to that business entity shall receive notice of the probation.
7. If the business entity fails to file the sworn affidavit within three business days, as required under subdivision (3) of subsection 6 of this section, the court shall enjoin the business entity from transacting business in the state until the business entity files the affidavit. Once the affidavit is filed, the court shall order the injunction to be lifted immediately.
8. If a court finds that a business entity knowingly employed an unauthorized alien while on probation, it shall issue an injunction permanently enjoining the business entity from transacting business in this state. Any agency that has issued a license to that employer shall receive notice of the injunction.
9. The correction of a violation with respect to the employment of an unauthorized alien shall include the following actions:
(1) (a) The business entity terminates the unauthorized alien's employment. If the business entity attempts to terminate the unauthorized alien's employment and such termination is challenged in a court of the state of Missouri, the fifteen-business-day period for providing information to the attorney general referenced in subsection 3 of this section shall be tolled while the business entity pursues the termination of the unauthorized alien's employment in such forum; or
(b) The business entity, after acquiring additional information from the employee, requests a secondary or additional verification by the federal government of the employee's authorization, under the procedures of a federal work authorization program. While this verification is pending, the fifteen-business-day period for providing information to the attorney general referenced in subsection 3 of this section shall be tolled; and
(2) A legal representative of the business entity submits, at an office designated by the attorney general, the following:
(a) A sworn affidavit stating that the violation has ended that shall include a description of the specific measures and actions taken by the business entity to end the violation, and the name, address, and other adequate identifying information for any unauthorized aliens related to the complaint; and
(b) Documentation acceptable to the attorney general which confirms that the business entity has enrolled in and is participating in a federal work authorization program.
[7.] 10. The suspension of a business license or licenses under subsection 5 of this section shall terminate one business day after a legal representative of the business entity submits the affidavit and other documentation required under subsection [6] 9 of this section following any period of restriction required under subsection 5 of this section.
[8.] 11. For an entity that violates subsection 1 of section 285.530 for a second time, the court shall direct the applicable municipal or county governing body to suspend, for one year, the business permit, if such exists, and any applicable license or exemptions of the business entity. For a subsequent violation, the court shall direct the applicable municipal or county governing body to forever suspend the business permit, if such exists, and any applicable license or exemptions of the business entity.
[9.] 12. In addition to the penalties in subsections 5 to 8 and [8] 11 of this section:
(1) Upon the first violation of subsection 1 of section 285.530 by any business entity awarded a state contract or grant or receiving a state-administered tax credit, tax abatement, or loan from the state, the business entity shall be deemed in breach of contract and the state may terminate the contract and suspend or debar the business entity from doing business with the state for a period of three years. Upon such termination, the state may withhold up to twenty-five percent of the total amount due to the business entity;
(2) Upon a second or subsequent violation of subsection 1 of section 285.530 by any business entity awarded a state contract or grant or receiving a state-administered tax credit, tax abatement, or loan from the state, the business entity shall be deemed in breach of contract and the state may terminate the contract and permanently suspend or debar the business entity from doing business with the state. Upon such termination, the state may withhold up to twenty-five percent of the total amount due to the business entity.
[10.] 13. Sections 285.525 to 285.550 shall not be construed to deny any procedural mechanisms or legal defenses included in a federal work authorization program.
[11.] 14. Any business entity subject to a complaint and subsequent enforcement under sections 285.525 to 285.540, or any employee of such a business entity, may challenge the enforcement of this section with respect to such entity or employee in the courts of the state of Missouri.
[12.] 15. If the court finds that any complaint is frivolous in nature or finds no probable cause to believe that there has been a violation, the court shall dismiss the case. For purposes of this subsection, "frivolous" shall mean a complaint not shown by clear and convincing evidence to be valid. Any person who submits a frivolous complaint shall be liable for actual, compensatory, and punitive damages to the alleged violator for holding the alleged violator before the public in a false light. If the court finds that a complaint is frivolous or that there is not probable cause to believe there has been a violation, the attorney general shall issue a public report to the complainant and the alleged violator stating with particularity its reasons for dismissal of the complaint. Upon such issuance, the complaint and all materials relating to the complaint shall be a public record as defined in chapter 610, RSMo.
[13.] 16. The determination of whether a worker is an unauthorized alien shall be made by the federal government. A determination of such status of an individual by the federal government shall create a rebuttable presumption as to that individual's status in any judicial proceedings brought under this section or section 285.530. The court may take judicial notice of any verification of an individual's status previously provided by the federal government and may request the federal government to provide automated or testimonial verification.
[14.] 17. Compensation, whether in money or in kind or in services, knowingly provided to any unauthorized alien shall not be allowed as a business expense deduction from any income or business taxes of this state.
[15.] 18. Any business entity which terminates an employee in accordance with this section shall not be liable for any claims made against the business entity under chapter 213, RSMo, for the termination.
19. An individual who submits a complaint to the attorney general or prosecuting attorney regarding an employer's alleged violation of subsections 5 to 8 of this section may recover up to ten percent of any moneys recovered by the state for any violations committed by that employer.
20. Beginning July 1, 2010, the department of labor and industrial relations shall, after reviewing relevant data regarding the employment of unauthorized aliens, determine which classification of employers shall be required to verify the immigration status of employees through a federal work authorization program.
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