84R3065 KSD-F

By: Davis of Dallas H.B. No. 997

A BILL TO BE ENTITLED

AN ACT

relating to certain duties of employers voluntarily participating in the federal E-Verify program and of the Texas Workforce Commission in regard to the E-Verify program; providing civil penalties.

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

SECTION 1. Subtitle B, Title 2, Labor Code, is amended by adding Chapter 53 to read as follows:

CHAPTER 53. VERIFICATION OF EMPLOYMENT AUTHORIZATION STATUS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 53.001. DEFINITIONS. In this chapter:

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

(2) "Employee" has the meaning assigned by Section 21.002.

(3) "Employer" has the meaning assigned by Section 21.002.

(4) "E-Verify program" means the electronic verification of employment 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 employment authorization program designated by the United States Department of Homeland Security or other federal agency authorized to verify the employment 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) "Governmental entity" means:

(A) the state; or

(B) a political subdivision of the state, including a municipality, a county, or any kind of district.

(6) "License" means a license, certificate, registration, permit, or other authorization that:

(A) is issued by a licensing authority;

(B) is subject before expiration to renewal, suspension, revocation, forfeiture, or termination by a governmental entity that issues or renews a license; and

(C) is required for a person to practice or engage in a particular business, occupation, or profession.

Sec. 53.002. RULES. The commission shall adopt rules and prescribe forms to implement this chapter. The commission shall publish the proposed and adopted rules on the commission's website and in the Texas Register.

SUBCHAPTER B. DUTIES REGARDING E-VERIFY PROGRAM

Sec. 53.051. COMMISSION DUTIES. The commission shall post in a prominent location on its website information or links to information from the United States Government Accountability Office or a similar reliable source independent of the United States Department of Homeland Security selected by the commission regarding:

(1) the accuracy of the E-Verify program database;

(2) the approximate financial burden and expenditure of time that using the E-Verify program imposes on an employer; and

(3) an overview of an employer's duties under federal and state law regarding using the E-Verify program.

Sec. 53.052. DUTIES OF EMPLOYER VOLUNTARILY PARTICIPATING IN E-VERIFY PROGRAM; VIOLATION. (a) Before voluntarily enrolling in the E-Verify program, an employer must consider consulting the commission's website to review current information on the accuracy of the program's database and an employer's legal duties in regard to participating in the program.

(b) On initial enrollment in the E-Verify program, or, for an employer who enrolled in the program before September 1, 2015, as soon as practicable after that date, the employer must attest under penalty of perjury, in the manner and on a form prescribed by the commission and accessible on the commission's website, that:

(1) the employer:

(A) has received the E-Verify program training materials from the United States Department of Homeland Security; and

(B) has posted in a prominent location in the employer's workplace visible to both prospective and current employees of the employer:

(i) a notice from the United States Department of Homeland Security indicating that the employer is enrolled in the E-Verify program; and

(ii) an antidiscrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices of the Civil Rights Division of the United States Department of Justice; and

(2) each of the employer's employees who will administer the program has completed the program's computer-based tutorial.

(c) An employer shall maintain the signed original of the attestation form described by Subsection (b) and any documentation certifying completion of the E-Verify program's computer-based tutorial by the employer and its employees and make those documents available for inspection or copying by the commission at reasonable times.

(d) An employer who participates in the E-Verify program shall ensure that:

(1) the program is used by the employer and the employer's authorized employees for the sole purpose of verifying the employment authorization status of newly hired employees; and

(2) any information accessible through the E-Verify program and the means of access to the program are not disseminated to any person other than to an authorized employee performing employment verification duties on behalf of the employer.

(e) An employer enrolled in the E-Verify program violates this section if the employer:

(1) fails to display the notices required by Subsection (b) in the manner prescribed by that subsection;

(2) allows an employee to use an E-Verify program before completing the program's computer-based tutorial;

(3) fails to take reasonable steps to prevent an employee from assuming another employee's E-Verify program user identification or password in order to circumvent completing the program's computer-based tutorial;

(4) uses the E-Verify program to verify the employment eligibility of a job applicant before hiring the applicant or to otherwise use the program to screen an applicant before hiring and completing a Form I-9 in regard to the applicant;

(5) accesses information through the E-Verify program regarding an individual who is not an employee of the employer; or

(6) fails to safeguard the information accessible through the E-Verify program and the means of access to the program, including user identifications, passwords, and other privacy protections.

SUBCHAPTER C. ENFORCEMENT

Sec. 53.101. COMMISSION INVESTIGATION; COMPLAINT RESOLUTION; CIVIL ACTION. (a) A person who has reason to believe that an employer has violated Section 53.052 may file a complaint with the commission in accordance with this section.

(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.

(d) On receipt of a complaint, a staff member of the commission designated by the executive director shall investigate the complaint in an attempt to determine whether a violation of Section 53.052 occurred. If the staff member determines that there is no substantial evidence that the employer violated Section 53.052, the commission shall dismiss the complaint and inform the complainant in writing by certified mail of the dismissal and of the complainant's right to file a civil action under Section 53.102.

(e) If the staff member determines that there is substantial evidence that the employer violated Section 53.052, the commission shall endeavor to resolve the complaint by informal methods of conference, conciliation, and persuasion.

(f) If the commission does not resolve the complaint under Subsection (e), the commission may commence a civil action in a court in the county in which the complainant resides or in which the complainant is employed to compel compliance by the employer. The commission shall recover court costs and reasonable attorney's fees in an action brought by the commission under this subsection.

Sec. 53.102. CIVIL ACTION BY EMPLOYEE OR EMPLOYMENT APPLICANT. A person who is injured by an employer's violation of Section 53.052 may bring a civil action against the employer in a court in the county in which the complainant resides or in which the complainant is employed.

Sec. 53.103. CIVIL PENALTY; DAMAGES; LICENSE SUSPENSION. On a finding that an employer violated Section 53.052, the court shall:

(1) assess against the employer a civil penalty of not more than $200 per employee affected by the violation;

(2) for a wilful and knowing violation or a second violation, assess against the employer a civil penalty of not more than $500 per employee affected by the violation; or

(3) for a third or subsequent violation:

(A) assess against the employer a civil penalty of not more than $1,000 per employee affected by the violation, as well as actual damages, court costs, and reasonable attorney's fees; and

(B) order the suspension for at least 90 days of each license held by the employer.

SECTION 2. Subchapter B, Chapter 21, Labor Code, is amended by adding Section 21.062 to read as follows:

Sec. 21.062. DISCRIMINATION BY EMPLOYER PARTICIPATING IN E-VERIFY PROGRAM. (a) In this section, "E-Verify program" has the meaning assigned by Section 53.001.

(b) An employer participating in the E-Verify program commits an unlawful employment practice if the employer refuses to hire, segregates, or acts with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or terms, privileges, or conditions of employment in regard to an individual without following the procedures of the E-Verify program.

SECTION 3. Section 21.062, Labor Code, as added by this Act, applies to the conduct of an employer occurring on or after the effective date of this Act. Conduct occurring before that date is governed by the law in effect on the date the conduct occurred, and the former law is continued in effect for that purpose.

SECTION 4. This Act takes effect September 1, 2015.