Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
               ENGROSSED
        Committee Substitute House Bill 4759
    By Delegates Phillips, McGeehan and Horst [Originating in the Committee on the Judiciary;
          Reported on January 23, 2024]
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  A BILL to amend and reenact §21-1B-2, §21-1B-3, §21-1B-4, §21-1B-5, §21-1B-7, and §21-1B-8
         of the Code of West Virginia, 1931, and to repeal §21-1B-6, of the Code of West Virginia,
         1931, and amends and reenacts §21-5I-4 of the Code of West Virginia, 1931, all relating to
         E-Verify, the federal employment authorization program; defining terms; requiring
         businesses to participate in E-Verify as a condition for receiving state contracts, grants, or
         incentives; requiring subcontractors to participate in E-Verify prior to working on any
         project paid for by any state contract, grant, or incentive; providing for all employers
         regardless of size to keep required records; providing rules for E-Verify participation for
         contractors and subcontractors; requiring employers in this state to enroll and participate in
        E-Verify; listing exceptions to said mandatory participation; providing rules for E-Verify
        participation for employers; imposing civil penalties; providing defenses; providing for
        enforcement; and requiring the Division of Labor to propose legislative rules to implement
        the article's provisions, and relating to the definition of independent contractor.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 1B. VERIFYING LEGAL EMPLOYMENT STATUS OF WORKERS.
     §21-1B-2.                                                                                Definitions.
         (a) "Employer" means any individual, person, corporation, department, board, bureau,
  agency, commission, division, office, company, firm, partnership, council or committee of the state
  government, public benefit corporation, public authority or political subdivision of the State or other
  business entity which employs or seeks to employ an individual or individuals.
         (b) "Commissioner" means the labor commissioner or his or her designated agent.
         (c) "Unauthorized worker" means a person who does not have the legal right to be
  employed or is employed in violation of law.
         (d) "Records" means records that may be required by the Commissioner of Labor for the
  purposes of compliance with the provisions of this article.
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            (e) "Knowingly" means, with respect to conduct or to a circumstance described by a statute
 defining an offense, that a person is aware by documentation or action that the person's conduct is
 of that nature or that the circumstance exists. Failure to request or review documentation of an
 employee's legal status or authorization to work is deemed to be "knowingly".
            (f) "License" means any permit, certificate, approval, registration, charter or similar form of
 authorization that is required by law and that is issued for the purpose of operating a business in
 this State
            "Alien" means any person who is not a citizen or national of the United States as described
 in 8 U.S.C. § 1101 et seq., and any amendments thereto.
            "Commissioner" means the Commissioner of the Division of Labor or his or her designated
 agent.
            “Court of competent jurisdiction” means the circuit court where violations of §21-1B-3 of
 this code is alleged to have occurred.
            "Employee" means any person directed, allowed, or permitted to perform labor or service
 of any kind by an employer. The employees of an independent contractor working for an employer
 shall not be regarded as the employees of the employer, for the purposes of this article.
            "Employer" means any individual, person, contractor, subcontractor, corporation,
 department, board, bureau, agency, commission, division, office, company, firm, partnership,
 council or committee of the state government, public benefit corporation, public authority or
 political subdivision of the state, or other private business entity which employs or seeks to employ
 an individual or individuals and that is registered or registers with the Secretary of State: Provided,
 That employers who employ fewer than fifteen people are not employers for purposes of this
 article.
            "E-Verify" means the electronic verification of federal employment authorization program
 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, PL 104-208, 8 U.S.C.
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 § 1324a, and operated by the United States Department of Homeland Security, or its successor
 program.
         "Federal work authorization program" means any of the electronic verification of work
 authorization programs operated by the United States Department of Homeland Security or an
 equivalent federal work authorization program operated by the United States Department of
 Homeland Security to verify information of newly hired employees, under the Immigration Reform
 and Control Act of 1986 (IRCA), P.L. 99-603 or the Illegal Immigration Reform and Immigrant
 Responsibility Act of 1996, P.L. 104-208, Division C, Section 403(a), 8 U.S.C. § 1324a.
         "Independent contractor" has the same meaning as defined in §21-5I-4 of this code.
         "Knowingly" means, with respect to conduct or to a circumstance described by a statute
 defining an offense, that a person is aware by documentation or action that the person's conduct is
 of that nature or that the circumstance exists.
         "Lawful presence" or "lawfully present" means a person shall be regarded as an alien
 unlawfully present in the United States only if the person's unlawful immigration status has been
 verified by Immigration and Customs Enforcement (ICE), or any successor agency thereto,
 pursuant to 8 U.S.C. § 1373(c). No officer of this state or any political subdivision of this state shall
 attempt to independently make a final determination of an alien's immigration status. An alien
 possessing self-identification in any of the following forms is entitled to the presumption that he or
 she is an alien lawfully present in the United States:
         (1) A valid, unexpired West Virginia driver's license;
         (2) A valid, unexpired West Virginia nondriver identification card (if applicable);
         (3) A valid, tribal enrollment card or other form of tribal identification bearing a photograph
 or other biometric identifier;
         (4) Any valid United States federal or state government issued identification document
 bearing a photograph or other biometric identifier, if issued by an entity that requires proof of lawful
 presence in the United States before issuance;
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           (5) A foreign passport with an unexpired United States visa and a corresponding stamp or
 notation by the United States Department of Homeland Security indicating the bearer's admission
 to the United States; and
           (6) A foreign passport issued by a Visa Waiver Program designated country with the
 corresponding entry stamp and unexpired duration of stay annotation or an I-94W form by the
 United States Department of Homeland Security indicating the bearer's admission to the United
 States.
           "License" means any permit, certificate, approval, registration, charter, or similar form of
 authorization that is required by law and that is issued for the purpose of operating a business in
 this state.
           "Private employer" means an employer that is not the State of West Virginia or any political
 subdivision, agency, or instrumentality thereof.
           "Public employer" means the State of West Virginia and any political subdivision, agency,
 or instrumentality thereof.
           "Unauthorized worker" means a person who does not have the legal right to be employed
 or is employed in violation of law or an alien who is not authorized to work in the United States as
 defined in 8 U.S.C. § 1324a(h)(3).
           "Willfully" means conduct that is intentionally engaged and the consequences of such
 conduct results in         a violation of        this article.
     §21-1B-3. Unauthorized workers; employment prohibited; requirement to E-Verify;
               exceptions.
            (a) It is unlawful for any employer to knowingly employ, hire, recruit or refer, either for
  himself or herself or on behalf of another, for private or public employment within the State, an
  unauthorized worker who is not duly authorized to be employed by law.
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          (b) Employers shall be required to verify a prospective employee's legal status or
  authorization to work prior to employing the individual or contracting with the individual for
  employment services
          (c) For purposes of this article, proof of legal status or authorization to work includes, but is
  not limited to, a valid social security card, a valid immigration or nonimmigration visa, including
  photo identification, a valid birth certificate, a valid passport, a valid photo identification card issued
 by a government agency, a valid work permit or supervision permit authorized by the Division of
 Labor, a valid permit issued by the Department of Justice or other valid document providing
 evidence of legal residence or authorization to work in the United States
         (d) For purposes of enforcing the provisions of this article, and notwithstanding any other
 provision of this code to the contrary, the commissioner or his or her authorized representative
 may access information maintained by any other state agency, including, but not limited to, the
 Bureau of Employment Programs and the Division of Motor Vehicles, for the limited purpose of
 confirming the validity of a worker's legal status or authorization to work. The commissioner shall
 promulgate rules in accordance with the provisions of §29A-3-1 et seq. of this code to safeguard
 against the release of any confidential or identifying information that is not necessary for the
 limited purpose of enforcing the provisions of this article
         (a) No employer, regardless of the number of employees, may knowingly and willfully
 employ, hire for employment, or continue to employ an unauthorized alien to perform work within
 the state of West Virginia.
         (b) Effective January 1, 2025, every employer in this state shall enroll in E-Verify and
 thereafter, according to the federal statutes and regulations governing E-Verify, shall verify the
 employment eligibility of new hires through E-Verify within three days after the employee's first day
 of work for pay, unless the employee will work for fewer than three days, in which case the
 verification must occur no later than the first day of work for pay. An employer that uses E-Verify to
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 verify the work authorization of an employee shall not be considered to have violated this section
 with respect to the employment of that employee.
        (c) The provisions of this article do not apply to the following:
        (1) The relationship between a party and independent contractor or the employees of an
 independent contractor performing work for the party;
        (2) Casual domestic labor performed within a household; and
        (3) Individual homeowners who hire workers on private property used exclusively for the
 owner and the owner's guests.
 §21-1B-4. Record-keeping requirements; employer compliance.
        Every employer, firm and corporation, regardless of number of employees, shall make
 such records of the persons he or she employs including records of proof of the legal status or
 authorization to work of all employees. Such records shall be preserved pursuant to the provisions
 of section five, article five-c of this chapter and shall be maintained at the place of employment.
 Pursuant to section three, article one of this chapter, such records shall be made available to the
 commissioner or his or her authorized representative for inspection and investigation as the
 commissioner deems necessary and appropriate for the purposes of determining whether any
 employer, firm or corporation has violated any provision of this article which may aid in the
 enforcement of the provisions of this article.
     §21-1B-5. Penalties; suspension or revocation of license; determination of employment status; writ of mandamus for nonenforcement of provisions.
         (a) Any employer who knowingly and willfully fails to maintain records as required by
  section four of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined
  $100 for each offense. Failure to keep records on each employee constitutes a separate offense.
         (b) Any employer who knowingly violates the provisions of section three of this article by
  employing, hiring, recruiting or referring an unauthorized worker is guilty of a misdemeanor and,
  upon conviction thereof, is subject to the following penalties:
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          (1) For a first offense, a fine of not less than $100 nor more than $1,000 for each violation;
          (2) For a second offense, a fine of not less than $500 nor more than $5,000 for each
  violation;
         (3) For a third or subsequent offense, a fine of not less than $1,000 nor more than $10,000,
 or confinement in jail for not less than thirty days nor more than one year, or both.
         (c) Any employer who knowingly and willfully provides false records as to the legal status
 or authorization to work of any employee to the commissioner or his or her authorized
 representative is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not
 more than one year or fined not more than $2,500, or both.
         (d) Any employer who knowingly and willfully and with fraudulent intent sells, transfers, or
 otherwise disposes of substantially all of the employer's assets for the purpose of evading the
 record-keeping requirements of section four of this article is guilty of a misdemeanor and, upon
 conviction thereof, shall be confined in jail not more than one year or fined not more than $10,000,
 or both.
         (a) Upon a knowing and willful first violation of §21-1B-3 of this code by an employer the
 commissioner may, after providing notice and an opportunity to be heard, pursuant to §29A-5-1 et
 seq. of this code, suspend the business licenses of the employer for up to 10 days, or until
 compliance is accomplished, whichever is later. If the employer is a contractor or subcontractor
 under a contract with the state or any political subdivision thereof, the commissioner may, within
 the same administrative proceeding, also suspend the applicable contract for any time the
 employer’s license is suspended. If the employer accomplishes compliance with this article prior
 to the start or prior to the completion of any administrative action, the employer’s business license
 shall not be suspended. Accomplishment of compliance with this article shall include submission
 by the employer of a signed, sworn affidavit stating that the employer is in compliance with the
 provisions of this article and a copy of the Memorandum of Understanding issued to the employer
 at the time of enrollment in E-Verify. In the case the employer is a contractor or subcontractor
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 whose contract has also been suspended, if the contracting parties are willing to resume the
 contract, upon the reinstatement of the license the contract shall also be reinstated.
        (b) Upon a knowing and willful second violation of §21-1B-3 of this code by an employer
 the commissioner may, after providing notice and an opportunity to be heard, pursuant to §29A-5-
 1 et seq. of this code, suspend the business licenses of the employer for up to 60 days, or until
 compliance is accomplished, whichever is later. If the employer is a contractor or subcontractor
 under a contract with the state or any political subdivision thereof, the commissioner may, within
 the same administrative proceeding, also suspend the applicable contract for any time the
 employer’s license is suspended. If the employer accomplishes compliance with this article prior
 to the start or prior to the completion of any administrative action, the employer’s business license
 shall not be suspended. Accomplishment of compliance with this article shall include submission
 by the employer of a signed, sworn affidavit stating that the employer is in compliance with the
 provisions of this article and a copy of the Memorandum of Understanding issued to the employer
 at the time of enrollment in E-Verify. In the case the employer is a contractor or subcontractor
 whose contract has also been suspended, if the contracting parties are willing to resume the
 contract, upon the reinstatement of the license the contract shall also be reinstated: Provided,
 That an adjudicated first violation of this section by a private employer, as demonstrated by a final
 order not subject to any further appellate processes, must have occurred within 10 years
 immediately preceding the date of application by the state entity, political subdivision thereof, or
 state to the commissioner in the current proceeding in order for a second offense violation to be
 alleged against the private employer.
        (c) Upon a