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H. B. No. 286 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Representatives Combs, Bubp
Cosponsors:
Representatives Thompson, Adams, R., Adams, J., Brenner, Ruhl, Derickson, Johnson, Newbold, McClain, Maag, Young, Martin
A BILL
To amend section 4113.99 and to enact sections
4113.81 to 4113.88 of the Revised Code to adopt
provisions related to the employment of
unauthorized aliens.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 4113.99 be amended and sections
4113.81, 4113.82, 4113.83, 4113.84, 4113.85, 4113.86, 4113.87, and
4113.88 of the Revised Code be enacted to read as follows:
Sec. 4113.81. As used in sections 4113.81 to 4113.88 of the
Revised Code:
(A) "E-verify program" means the employment verification
pilot program as jointly administered by the United States
department of homeland security and the social security
administration or any of its successor programs.
(B) "Knowingly employ an unauthorized alien" means the
actions described in the "Immigration Reform and Control Act of
1986," 100 Stat. 3360, 8 U.S.C. 1324a. This term shall be
interpreted consistently with the "Immigration Reform and Control
Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a and any applicable
federal rules and regulations.
(C)(1) "License" means 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.
(2) "License" includes all of the following:
(a) Articles of incorporation or organization under Title
XVII of the Revised Code;
(b) A certificate of limited partnership issued under section
1782.08 of the Revised Code;
(c) A license issued to a foreign corporation under section
1703.04 of the Revised Code.
(3) "License" does not include either of the following:
(a) Any permit or license issued under any environmental laws
as defined by section 3745.70 of the Revised Code;
(b) Any professional license.
(D) "Unauthorized alien" means an alien who does not have the
legal right or authorization under federal law to work in the
United States as described in the "Immigration Reform and Control
Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a.
Sec. 4113.82. (A)(1) No employer shall knowingly employ an
unauthorized alien.
(2) No employer purposefully shall employ an unauthorized
alien.
(3) No individual knowingly shall file a false and frivolous
complaint under section 4113.83 of the Revised Code.
(B) Every employer, after hiring an employee, shall verify
the employment eligibility of the employee through the e-verify
program.
(C) For purposes of division (A)(1) of this section, an
employer violates that division if the employer uses a contract,
subcontract, or other independent contractor agreement to obtain
the labor of an alien in this state and the employer knowingly
contracts with an alien the employer knows is an unauthorized
alien or with a person whom the employer knows employs or
contracts with an unauthorized alien to perform the labor.
(D) For purposes of division (A)(2) of this section, an
employer violates that division if the employer uses a contract,
subcontract, or other independent contractor agreement to obtain
the labor of an alien in this state and the employer purposefully
contracts with an alien the employer knows is an unauthorized
alien or with a person whom the employer knows employs or
contracts with an unauthorized alien to perform the labor.
Sec. 4113.83. The attorney general shall prescribe a
complaint form for a person to allege a violation of division
(A)(1) or (2) of section 4113.82 of the Revised Code. The attorney
general shall not require the complainant to list the
complainant's social security number on the complaint form or to
have the complaint form notarized. A complainant shall submit the
complaint to the attorney general or to the prosecuting attorney
of the county in which the alleged unauthorized alien is or was
employed by the employer. On receipt of a complaint on a
prescribed complaint form that an employer allegedly knowingly or
purposefully employs an unauthorized alien, the attorney general
or prosecuting attorney shall investigate whether the employer has
violated division (A)(1) or (2) of section 4113.82 of the Revised
Code, as alleged in the complaint. Nothing in this section shall
be construed to prohibit an individual from filing an anonymous
complaint on a form other than the prescribed complaint form. If
the attorney general or a prosecuting attorney receives a
complaint that is not submitted on a prescribed complaint form,
the attorney general or prosecuting attorney may, but is not
required to, investigate whether the employer has violated
division (A)(1) or (2) of section 4113.82 of the Revised Code as
alleged in the complaint. The attorney general or prosecuting
attorney shall not investigate complaints that are based solely on
race, color, or national origin.
The county sheriff or any other local law enforcement officer
may assist in investigating a complaint. When investigating a
complaint, the attorney general or prosecuting attorney shall
verify the work authorization of the alleged unauthorized alien
with the federal government pursuant to the federal "Omnibus
Consolidated Appropriations Act, 1997," 110 Stat. 3009, 8 U.S.C.
1373(c), as amended. An officer or employee of the state or a
political subdivision of the state shall not attempt to
independently make a final determination on whether an alien is
authorized to work in the United States.
Sec. 4113.84. (A) If, after an investigation conducted under
section 4113.83 of the Revised Code, the attorney general or
prosecuting attorney determines that the complaint is not false
and frivolous, the attorney general or prosecuting attorney shall
do all of the following, as applicable:
(1) Notify the United States department of homeland security
or its successor agency regarding the status of the unauthorized
alien;
(2) Notify the local law enforcement agency regarding the
status of the unauthorized alien;
(3) If the complaint was originally filed with the attorney
general, notify the appropriate prosecuting attorney to allow the
prosecuting attorney to bring an action pursuant to division (B)
of this section.
(B) If a prosecuting attorney of the county where an
unauthorized alien employee allegedly is or was employed by an
employer conducts an investigation under section 4113.83 of the
Revised Code and determines that reasonable evidence exists that
the employer violated division (A)(1) or (2) of section 4113.82 of
the Revised Code, or if that prosecuting attorney receives a
notice under division (A)(3) of this section, the prosecuting
attorney shall bring an action for a violation of division (A)(1)
or (2) of section 4113.82 of the Revised Code against the employer
in the court of common pleas of the county where the unauthorized
alien employee allegedly is or was employed by the employer. The
prosecuting attorney shall not bring an action against any
employer for any violation of division (A)(1) or (2) of section
4113.82 of the Revised Code that occurred prior to the effective
date of this section. A second violation of this section shall be
based only on any additional unauthorized aliens employed by the
employer after a previous action has been brought against an
employer for a violation of division (A)(1) or (2) of section
4113.82 of the Revised Code.
(C) For any action brought pursuant to this section, the
court shall expedite the action, including assigning the hearing
at the earliest practicable date.
Sec. 4113.85. (A) In an action brought pursuant to section
4113.84 of the Revised Code, for purposes of determining whether
an employee is an unauthorized alien, a court shall consider only
a determination with respect to that alien's immigration status
made by the federal government pursuant to the federal "Omnibus
Consolidated Appropriations Act, 1997," 110 Stat. 3009, 8 U.S.C.
1373(c), as amended. The federal government's determination
creates a rebuttable presumption of the alien'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 the federal
"Omnibus Consolidated Appropriations Act, 1997," 110 Stat. 3009, 8
U.S.C. 1373(c), as amended.
(B) For purposes of section 4113.84 of the Revised Code,
proof of verifying the employment authorization of an employee
through the e-verify program creates a rebuttable presumption that
an employer did not knowingly or purposefully employ an
unauthorized alien.
(C) For purposes of section 4113.84 of the Revised Code, an
employer who establishes that the employer has complied in good
faith with the requirements of the federal "Immigration Reform and
Control Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a(b), as
amended, establishes an affirmative defense that the employer did
not knowingly or purposefully employ an unauthorized alien in
violation of division (A)(1) or (2) of section 4113.82 of the
Revised Code. An employer is considered to have complied with the
requirements of the federal "Immigration Reform and Control Act of
1986," 100 Stat. 3360, 8 U.S.C. 1324a(b), as amended,
notwithstanding an isolated, sporadic, or accidental technical or
procedural failure to meet the requirements, if a good faith
attempt was made to comply with the requirements of that act.
(D)(1) It is an affirmative defense to a violation of
division (A)(1) or (2) of section 4113.82 of the Revised Code that
an employer was entrapped. To claim entrapment, the employer shall
admit to the substantial elements of the violation through the
employer's testimony or by the use of other evidence. An employer
who asserts an entrapment defense has the burden of proving all of
the following elements by a preponderance of the evidence:
(a) The idea of committing the violation started with a peace
officer or an agent of the officer rather than with the employer.
(b) The peace officer or agent urged and induced the employer
to commit the violation.
(c) The employer was not predisposed to commit the violation
before the peace officer or agent urged and induced the employer
to commit the violation.
(2) An employer does not establish the defense of entrapment
if the employer was predisposed to violate division (A)(1) or (2)
of section 4113.82 of the Revised Code and the peace officer or
agent merely provided the employer with an opportunity to commit
the violation. A peace officer or an agent of the officer has not
entrapped an employer if the officer or agent merely used a ruse
or concealed the officer's or agent's identity. The conduct of a
peace officer or an agent of the officer may be considered in
determining if an employer has proven entrapment.
Sec. 4113.86. (A)(1) If a court, pursuant to an action
brought under section 4113.84 of the Revised Code, determines that
an employer has committed a first violation of division (A)(1) of
section 4113.82 of the Revised Code, the court shall do all of the
following:
(a) Order the employer to terminate the employment of all
unauthorized aliens;
(b) Order the employer to be subject to a three-year
probationary period for the business location where the
unauthorized alien performed work;
(c) Order the employer to file a signed affidavit of the type
described in division (A)(4) of this section with the prosecuting
attorney of the county where the violation occurred within three
business days after the order is issued.
(2) If a court pursuant to an action brought under section
4113.84 of the Revised Code determines that an employer has
committed a first violation of division (A)(1) of section 4113.82
of the Revised Code, the court may order the appropriate agencies
to suspend all licenses described in division (A)(4) of this
section that are held by the employer for a period not to exceed
ten business days. The court shall determine whether to suspend an
employer's licenses based upon any evidence or information
submitted to the court during the action and shall consider any of
the following factors, as applicable:
(a) The number of unauthorized aliens employed by the
employer;
(b) Any prior misconduct committed by the employer;
(c) The degree of harm resulting from the violation;
(d) Whether the employer made good faith efforts to comply
with any applicable requirements;
(e) The duration of the violation;
(f) The role of the directors, officers, or principals of the
employer in the violation;
(g) Any other factors the court considers appropriate.
(3) During the probationary period described in division
(A)(1)(b) of this section, the employer shall file quarterly
reports in the form provided in section 3121.892 of the Revised
Code with the prosecuting attorney of the county where the
violation occurred documenting each new employee who is hired by
the employer after the date the court determined the employer
violated division (A)(1) of section 4113.82 of the Revised Code
and who is employed at the business location where the
unauthorized alien performed work.
(4) The affidavit described in division (A)(1)(c) of this
section shall state that the employer has terminated the
employment of all unauthorized aliens employed by the employer in
this state and that the employer will not purposefully or
knowingly employ an unauthorized alien in this state. If the
employer fails to file the affidavit with the prosecuting attorney
within three business days after the date the order is issued, the
court shall order the appropriate agencies to suspend all licenses
described in this division held by the employer. On receipt of the
court's order and notwithstanding any other law to the contrary,
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 section 4113.88 of the Revised Code.
For the purposes of division (A)(4) of this section, a
license subject to suspension is any license 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, any license held by the employer at the
employer's primary place of business is subject to suspension.
A license remains suspended until the employer files the
affidavit required under division (A)(1)(c) of this section with
the prosecuting attorney. Notwithstanding any other law to the
contrary, the appropriate agency shall reinstate the suspended
license upon the employer's filing of the affidavit with the
prosecuting attorney.
(B) For a second violation of division (A)(1) of section
4113.82 of the Revised Code, 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 law, the
appropriate agencies shall immediately revoke the licenses.
(C) A violation is considered 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
section or section 4113.87 of the Revised Code for that employer's
business location. A violation is considered a second violation by
an employer at a business location if the violation occurred
during a probationary period ordered by the court under this
section or section 4113.87 of the Revised Code for that employer's
business location.
Sec. 4113.87. (A)(1) If a court, pursuant to an action
brought under section 4113.84 of the Revised Code, determines that
an employer has committed a first violation of division (A)(2) of
section 4113.82 of the Revised Code, the court shall do all of the
following:
(a) Order the employer to terminate the employment of all
unauthorized aliens;
(b) Order the employer to be subject to a five-year
probationary period for the business location where the
unauthorized alien performed work;
(c) Order the appropriate agencies to suspend all licenses
described in division (A)(4) of section 4113.86 of the Revised
Code held by the employer for a minimum of ten days;
(d) Order the employer to file a signed affidavit of the type
described in division (A)(4) of this section with the prosecuting
attorney of the county where the violation occurred within three
business days after the order is issued.
(2) During the probationary period described in division
(A)(1)(b) of this section, the employer shall file quarterly
reports in the form provided in section 3121.892 of the Revised
Code with the prosecuting attorney of each new employee who is
hired by the employer after the date the court determined the
employer violated division (A)(2) of section 4113.82 of the
Revised Code and who is employed at the business location where
the unauthorized alien performed work.
(3) The court shall base its decision on the length of the
suspension described in division (A)(1)(c) of this section on any
evidence or information submitted to it during the action and
shall consider the factors described in divisions (A)(2)(a) to (g)
of section 4113.86 of the Revised Code, as applicable.
(4) The affidavit described in division (A)(1)(d) of this
section shall state that the employer has terminated the
employment of all unauthorized aliens employed by the employer in
this state and that the employer will not purposefully or
knowingly employ an unauthorized alien in this state. If the
employer fails to file the affidavit with the prosecuting attorney
within three business days after the date the order is issued, the
court shall order the appropriate agencies to extend the
suspension of all licenses described in division (A)(4) of section
4113.86 of the Revised Code held by the employer until the
employer files the affidavit required under division (A)(1)(d) of
this section. On receipt of the court's order and notwithstanding
any other law to the contrary, 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 section
4113.88 of the Revised Code.
A license remains suspended until the employer files the
affidavit required under division (A)(1)(d) of this section with
the prosecuting attorney. Notwithstanding any other law to the
contrary, the appropriate agency shall reinstate the suspended
license upon the employer's filing of the affidavit with the
prosecuting attorney.
(B) For a second violation of division (A)(2) of section
4113.82 of the Revised Code, 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 law, the
appropriate agencies shall immediately revoke the licenses.
(C) A violation is considered 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
section or section 4113.86 of the Revised Code for that employer's
business location. A violation is considered a second violation by
an employer at a business location if the violation occurred
during a probationary period ordered by the court under this
section or section 4113.86 of the Revised Code for that employer's
business location.
Sec. 4113.88. The attorney general shall do all of the
following:
(A) Maintain copies of all court orders received pursuant to
section 4113.86 or 4113.87 of the Revised Code;
(B) Maintain a database that includes the name of the
employer who has committed a first violation of division (A)(1) or
(2) of section 4113.82 of the Revised Code and the address of the
business location where that violation occurred;
(C) Make the court orders available on the web site
maintained by the attorney general.
Sec. 4113.99. (A) Whoever violates section 4113.15 of the
Revised Code is guilty of a misdemeanor of the first degree.
(B) Whoever violates section 4113.16, 4113.18, or 4113.19 of
the Revised Code is guilty of a minor misdemeanor.
(C) Whoever violates section 4113.17 of the Revised Code is
guilty of a minor misdemeanor for a first offense; for each
subsequent offense such person is guilty of a misdemeanor in the
fourth degree.
(D) Whoever violates division (A)(3) of section 4113.82 of
the Revised Code is guilty of a misdemeanor of the fourth degree.
Section 2. That existing section 4113.99 of the Revised Code
is hereby repealed.
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