82R10203 KSD-F

By: Chisum H.B. No. 3252

A BILL TO BE ENTITLED

AN ACT

relating to a prohibition against the knowing employment of unauthorized foreign nationals; providing administrative penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The purpose of this Act is to provide for the execution of the policies of the federal Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.), identify employers whose employment practices violate Sections 1324(a)(1) and (a)(2) of that Act, and make available to this state the full productive employment capacities of United States citizens, lawful permanent residents, and employment-authorized foreign-born nationals in this state.

SECTION 2. Subtitle B, Title 2, Labor Code, is amended by adding Chapter 53 to read as follows:

CHAPTER 53. EMPLOYMENT OF UNAUTHORIZED FOREIGN NATIONALS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 53.001. DEFINITIONS. In this chapter:

(1) "Commission" means the Texas Workforce Commission.

(2) "Employee" means an individual who is employed by an employer for compensation.

(3) "Employer" means a person who:

(A) employs one or more employees; or

(B) acts directly or indirectly in the interests of an employer in relation to an employee.

(4) "E-Verify program" means the electronic verification of work authorization program of the federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Pub. L. No. 104-208, reprinted in note, 8 U.S.C. Section 1324a), operated by the United States Department of Homeland Security, or a successor work authorization program designated by the United States Department of Homeland Security or another federal agency authorized to verify the work authorization status of newly hired employees under the federal Immigration Reform and Control Act of 1986 (8 U.S.C. Section 1101 et seq.).

(5) "Knowingly" means, with respect to employing, recruiting, or referring an unauthorized foreign national, having actual knowledge that a person is an unauthorized foreign national or failing to perform a legal duty to determine the employment eligibility status of an unauthorized foreign national.

(6) "Lawful resident alien" means a person who is entitled to lawful residence in the United States under the federal Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.).

(7) "Lawful resident verification information" means the documentation required by the United States Department of Homeland Security for completing the employment eligibility verification form commonly referred to as the I-9. Documentation that satisfies the requirements of the Form I-9 at the time of employment is lawful resident verification information.

(8) "Unauthorized foreign national" means a person who at the time of employment is neither an alien who is lawfully admitted for permanent residence in the United States under the federal Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.) nor authorized to be employed by that Act or the United States attorney general.

Sec. 53.002. RULES. The commission shall adopt rules for the administration of this chapter.

[Sections 53.003-53.050 reserved for expansion]

SUBCHAPTER B. PROHIBITION AGAINST KNOWING EMPLOYMENT OF

UNAUTHORIZED FOREIGN NATIONAL

Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF UNAUTHORIZED FOREIGN NATIONAL. (a) An employer may not knowingly employ, or recruit or refer for a fee for employment, an unauthorized foreign national.

(b) An employer has not violated Subsection (a) in regard to a particular employee if:

(1) the employer, at least four calendar days after the commencement of the employee's employment, requested from the employee and received and documented in the employee's employment record lawful resident verification information consistent with employer requirements under the federal Immigration Reform and Control Act of 1986 (8 U.S.C. Section 1101 et seq.); and

(2) the lawful resident verification information provided by the employee later was determined to be false.

(c) An employer has not violated Subsection (a) in regard to a particular employee if the employer verified the immigrant status of the person at least four calendar days after the commencement of the employee's employment through the E-Verify program.

[Sections 53.052-53.100 reserved for expansion]

SUBCHAPTER C. ADMINISTRATIVE PROVISIONS

Sec. 53.101. FILING COMPLAINT. (a) A person who has reason to believe that an employer has violated Section 53.051(a) may file a complaint with the commission in accordance with this subchapter.

(b) A complaint must:

(1) be in writing on a form prescribed by the commission; and

(2) be verified by the person making the complaint.

(c) A person may file a complaint under this section:

(1) in person at an office of the commission; or

(2) by mailing the complaint to an address designated by the commission.

Sec. 53.102. INVESTIGATION AND PRELIMINARY DISMISSAL ORDER OR REFERRAL ORDER. (a) On receipt of a complaint, an examiner employed by the commission shall investigate the complaint in an attempt to:

(1) verify information regarding the immigration status of the relevant employee or employees of the employer alleged to have violated Section 53.051(a); and

(2) determine whether a hearing should be conducted.

(b) If the examiner determines that there is no substantial evidence that the employer violated Section 53.051(a), the examiner shall issue a preliminary dismissal order dismissing the complaint.

(c) If the examiner determines that there is substantial evidence that the employer violated Section 53.051(a), the examiner shall refer the complaint to a hearing tribunal established under Section 53.103.

(d) The examiner shall mail notice of the preliminary dismissal order or referral order to each party at that party's last known address, as reflected by commission records.

Sec. 53.103. ESTABLISHMENT OF HEARING TRIBUNALS. The commission shall establish one or more impartial hearing tribunals to hear and decide complaints under this chapter.

Sec. 53.104. REQUEST FOR HEARING ON PRELIMINARY DISMISSAL ORDER. (a) A party may request a hearing before a hearing tribunal to appeal a preliminary dismissal order made under Section 53.102(b).

(b) The request for the hearing must be made in writing not later than the 21st day after the date the examiner mails the notice of the preliminary dismissal order.

Sec. 53.105. PRELIMINARY DISMISSAL ORDER FINAL IF HEARING NOT REQUESTED. If neither party requests a hearing to appeal a preliminary dismissal order made under Section 53.102(b) within the period prescribed by Section 53.104, the order becomes the final order of the commission for all purposes, and neither party is entitled to judicial review of the order under this subchapter.

Sec. 53.106. NOTICE OF AND TIME FOR HEARING. (a) A notice regarding a hearing conducted under this subchapter must be mailed by the hearing tribunal not later than the 21st day after the date the referral order or request for the hearing is received by the commission.

(b) As soon as practicable, but not later than the 45th day after the date a notice is mailed under Subsection (a), the tribunal shall conduct the hearing.

Sec. 53.107. HEARING PROCEDURES. (a) A hearing conducted under this subchapter is subject to the rules and hearings procedures used by the commission in the determination of a claim for unemployment compensation benefits.

(b) The hearing is not subject to Chapter 2001, Government Code.

Sec. 53.108. ORDER AFTER HEARING; ADMINISTRATIVE PENALTY. (a) After a hearing, if the hearing tribunal finds by clear and convincing evidence that the employer has violated Section 53.051(a), the hearing tribunal shall:

(1) for a first violation, enter a written order requiring the employer to request on-site training by the United States Department of Homeland Security to assist the employer in instituting compliance protocols that may prevent subsequent violations; or

(2) for a second or subsequent violation occurring before the second anniversary of the date of the hearing tribunal's order under Subdivision (1), enter a written order assessing an administrative penalty against the employer in an amount not to exceed:

(A) $50,000, if the employer employs fewer than 100 employees in this state;

(B) $100,000, if the employer employs at least 100 but fewer than 200 employees in this state;

(C) $200,000, if the employer employs at least 200 but fewer than 300 employees in this state; and

(D) $300,000, if the employer employs 300 or more employees in this state.

(b) For purposes of determining the number of employees employed by an employer under Subsection (a)(2), the requisite number of employees must have been employed by the employer for each of at least 20 calendar weeks during the current or preceding calendar year.

(c) After a hearing, if the hearing tribunal does not find by clear and convincing evidence that the employer has violated Section 53.051(a), the hearing tribunal shall enter a written order dismissing the complaint.

Sec. 53.109. NOTICE TO PARTIES AND FINALITY OF HEARING TRIBUNAL ORDER. (a) The hearing tribunal shall mail to each party to the hearing notice of the tribunal's decision. The notice shall be mailed to a party's last known address, as reflected by commission records.

(b) The order of the hearing tribunal becomes final on the 14th day after the date the order is mailed unless a further appeal to the commission is initiated as provided by this subchapter.

Sec. 53.110. REMOVAL OR TRANSFER OF COMPLAINT PENDING BEFORE HEARING TRIBUNAL. (a) The commission by order may remove to itself or transfer to another hearing tribunal the proceedings on a complaint before a hearing tribunal.

(b) The commission promptly shall mail to the parties to the affected hearing notice of the order under Subsection (a).

(c) A quorum of the commission shall hear a proceeding removed to the commission under Subsection (a).

Sec. 53.111. COMMISSION REVIEW OF HEARING TRIBUNAL ORDER. The commission may:

(1) on its own motion:

(A) affirm, modify, or set aside an order issued under Section 53.108 on the basis of the evidence previously submitted in the case; or

(B) direct the taking of additional evidence; or

(2) permit any of the parties affected by the order to initiate an appeal before the commission.

Sec. 53.112. NOTICE OF COMMISSION ACTION TO PARTIES. (a) The commission shall mail to each party to an appeal under Section 53.111 notice of:

(1) the commission's decision; and

(2) the parties' right to judicial review of the order.

(b) The notice shall be mailed to a party's last known address, as reflected by commission records.

Sec. 53.113. FINALITY OF COMMISSION ORDER. An order of the commission becomes final on the 14th day after the date the order is mailed unless before that date:

(1) the commission by order reopens the appeal; or

(2) a party to the appeal files a written motion for rehearing.

Sec. 53.114. JUDICIAL REVIEW. (a) A party who has exhausted the party's administrative remedies under this chapter, other than a motion for rehearing, may bring a suit to appeal the order.

(b) The suit must be filed not later than the 30th day after the date the final order is mailed to the party.

(c) The commission and any other party to the proceeding before the commission must be made defendants in the suit.

(d) The suit must be brought in the county of residence of the party seeking judicial review. If the party is not a resident of this state, the suit must be brought in the county in this state in which the employer has its principal place of business.

(e) An appeal under this subchapter is by trial de novo with the substantial evidence rule being the standard of review in the manner as applied to an appeal from a final decision under Subtitle A, Title 4.

SECTION 3. Chapter 53, Labor Code, as added by this Act, applies only to a violation that occurs on or after the effective date of this Act.

SECTION 4. This Act takes effect September 1, 2011.