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AN ACT relating to employment of unauthorized aliens. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
SECTION 1. A NEW SECTION OF KRS CHAPTER 336 IS CREATED TO 3
READ AS FOLLOWS: 4
As used in Sections 1 to 3 of this Act: 5
(1) "Alien" means any person who is not a citizen or national of the United States, 6
as described in 8 U.S.C. sec. 1101 et seq., as amended; 7
(2) "Business entity": 8
(a) Means any person or group of persons that employs one (1) or more persons 9
performing or engaging in any activity, enterprise, profession, or 10
occupation for gain, benefit, advantage, or livelihood, whether for profit or 11
not for profit; and 12
(b) Includes but is not limited to: 13
1. A self-employed individual, business entity filing articles of 14
incorporation, partnership, limited partnership, limited liability 15
company, foreign corporation, foreign limited partnership, foreign 16
limited liability company authorized to transact business in this state, 17
business trusts, and any business entity that registers with the 18
Secretary of State; and 19
2. Any business entity that possesses a business license, permit, 20
certificate, approval, registration, charter, or similar form of 21
authorization issued by the state, any business entity that is exempt by 22
law from obtaining such a business license, and any business entity 23
that is operating unlawfully without a business license; 24
(3) "Contractor": 25
(a) Means a person, employer, or business entity that enters into an agreement 26
to perform any service or work or to provide a certain product in exchange 27 UNOFFICIAL COPY 25 RS BR 1270
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for valuable consideration; and 1
(b) Includes but is not limited to a general contractor, subcontractor, 2
independent contractor, contract employee, project manager, or a recruiting 3
or staffing entity; 4
(4) "Employee": 5
(a) Means any person directed, allowed, or permitted to perform labor or 6
service of any kind by an employer, except that employees of an independent 7
contractor working for a business entity shall not be regarded as the 8
employees of the business entity for the purposes of Sections 1 to 3 and 4 of 9
this Act; and 10
(b) Does not include any inmate in the legal custody of the state, a county, or a 11
municipality; 12
(5) "Employer": 13
(a) Means any person, firm, corporation, partnership, joint stock association, 14
agent, manager, representative, foreman, or other person having control or 15
custody of any employment, place of employment, or of any employee, 16
including any person or entity employing any person for hire within the 17
Commonwealth of Kentucky, including a public employer; and 18
(b) Does not include the occupant of a household contracting with another 19
person to perform casual domestic labor within the household; 20
(6) "Employment": 21
(a) Means the act of employing or state of being employed, engaged, or hired to 22
perform work or service of any kind or character within the Commonwealth 23
of Kentucky, including any job, task, work, labor, personal services, or any 24
other activity for which compensation is provided, expected, or due; 25
(b) Includes but is not limited to all activities conducted by a business entity or 26
employer; and 27 UNOFFICIAL COPY 25 RS BR 1270
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(c) Does not include: 1
1. Casual domestic labor performed in a household on behalf of the 2
occupant of the household; or 3
2. The relationship between a contractor and the employees of a 4
subcontractor performing work for the contractor; 5
(7) "E-Verify" or "E-Verify Program" means the electronic verification of federal 6
employment authorization program of the Illegal Immigration Reform and 7
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, in U.S.C. sec. 8
1324(a), as amended, and operated by the United States Department of Homeland 9
Security, or a successor program. 10
(8) "Federal work authorization program" means any of the electronic verification 11
of work authorization programs operated by the United States Department of 12
Homeland Security, or an equivalent federal work authorization program 13
operated by the United States Department of Homeland Security to verify 14
information of newly hired employees, under the Immigration Reform and 15
Control Act of 1986, Pub. L .No. 99-603, as amended, or the Illegal Immigration 16
Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, as 17
amended, in U.S.C. sec. 1324(a); 18
(9) "Knows" or "knowingly" means a person acts knowingly or with knowledge with 19
respect to either: 20
(a) The person's conduct or to attendant circumstances when the person is 21
aware of the nature of the person's conduct or that those circumstances 22
exist; or 23
(b) A result of the person's conduct when the person is reasonably aware that 24
the person's conduct is likely to cause that result; 25
(10) "Policy or practice" means a guiding principle or rule that may be written or 26
adopted through repeated actions or customs; 27 UNOFFICIAL COPY 25 RS BR 1270
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(11) "Public employer" means every department, agency, or instrumentality of the 1
state or a political subdivision of the state, including every department, agency, or 2
instrumentality of cities, counties, urban-county governments, charter county 3
governments, consolidated local governments, unified local governments, and 4
special districts; 5
(12) "State-funded entity": 6
(a) Means any governmental entity of the state or a political subdivision thereof 7
or any other entity that receives any moneys from the state or a political 8
subdivision thereof; and 9
(b) Does not include an entity that only provides a service or a product to any 10
governmental entity of the state or a political subdivision thereof, and 11
receives compensation for the same; 12
(13) "Subcontractor" means a person, business entity, or employer who is awarded a 13
portion of an existing contract by a contractor, regardless of its tier; and 14
(14) "Unauthorized alien" means an alien who is not authorized to work in the United 15
States as defined in 8 U.S.C. sec. 1324a(h)(3). 16
SECTION 2. A NEW SECTION OF KRS CHAPTER 336 IS CREATED TO 17
READ AS FOLLOWS: 18
(1) A business entity, employer, or public employer shall not knowingly employ, hire 19
for employment, or continue to employ an unauthorized alien to perform work 20
within the Commonwealth of Kentucky. As used in this subsection, "knowingly 21
employ, hire for employment, or continue to employ an unauthorized alien" 22
means the actions described in 8 U.S.C. sec. 1324a. 23
(2) Every business entity or employer in this state shall enroll in E-Verify and 24
thereafter verify the employment eligibility of the employee through E-Verify in 25
accordance with the federal statutes and regulations governing the E-Verify 26
Program. A business entity or employer that uses E-Verify to determine the work 27 UNOFFICIAL COPY 25 RS BR 1270
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authorization of an employee shall not be deemed to have violated this section 1
with respect to the employment of that employee. 2
(3) On a finding of a first violation by a court of competent jurisdiction that a 3
business entity or employer knowingly violated subsection (1) of this section, the 4
court shall do all of the following: 5
(a) Order the business entity or employer to terminate the employment of every 6
unauthorized alien; 7
(b) Subject the business entity or employer to a three (3) year probationary 8
period throughout the state. During the probationary period, the business 9
entity or employer shall file quarterly reports with the local county attorney 10
specifying each new employee who is hired by the business entity or 11
employer in the state; 12
(c) Order the business entity or employer to file a signed, sworn affidavit with 13
the local county attorney within three (3) days after the order is issued by 14
the court stating that the business entity or employer has terminated the 15
employment of every unauthorized alien and the business entity or employer 16
will not knowingly or intentionally employ an unauthorized alien in this 17
state; and 18
(d) Direct the applicable state, county, or municipal governing bodies to 19
suspend all existing business licenses and permits of the business entity or 20
employer for a period not to exceed ten (10) business days specific to the 21
business location where the unauthorized alien performed work. 22
(4) Before a business license or permit that has been suspended under subsection 23
(3)(d) of this section is reinstated, a legal representative of the business entity or 24
employer shall submit to the court: 25
(a) A signed, sworn affidavit stating that the business entity or employer is in 26
compliance with subsection (1) of this section; and 27 UNOFFICIAL COPY 25 RS BR 1270
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(b) A copy of the memorandum of understanding issued to the business entity 1
or employer at the time of enrollment in E-Verify. 2
(5) The suspension of a business license or permit under subsection (3)(d) of this 3
section shall terminate one (1) business day after a legal representative of the 4
business entity or employer submits a signed, sworn affidavit to the court, stating 5
that the business entity or employer is in compliance with subsection (1) of this 6
section. 7
(6) For a second violation of subsection (1) of this section by a business entity or 8
employer, the court shall direct the applicable state, county, or municipal 9
governing body to permanently revoke all existing business licenses and permits, 10
held by the business entity or employer specific to the business location where the 11
unauthorized alien performed work. On receipt of the order, and notwithstanding 12
any other law, the appropriate agencies shall immediately revoke the licenses and 13
permits held by the business entity or employer. 14
(7) For a subsequent violation of subsection (1) of this section, the court shall direct 15
the applicable governing bodies to forever suspend all existing business licenses 16
and permits of the business entity or employer throughout the state. 17
(8) This section shall not be construed to deny any procedural mechanisms or legal 18
defenses included in the E-Verify Program or any other federal work 19
authorization program. A person or entity that establishes that it has complied in 20
good faith with the requirements of 8 U.S.C. sec. 1324a(b) establishes an 21
affirmative defense that the business entity or employer did not knowingly hire or 22
employ an unauthorized alien. 23
(9) In proceedings of the court, the determination of whether an employee is an 24
unauthorized alien shall be made by the federal government pursuant to 8 U.S.C. 25
sec. 1373(c). The court shall consider only the federal government's 26
determination when deciding whether an employee is an unauthorized alien. The 27 UNOFFICIAL COPY 25 RS BR 1270
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court may take judicial notice of any verification of an individual's immigration 1
status previously provided by the federal government and may request the federal 2
government to provide further automated or testimonial verification. 3
(10) Any business entity or employer that terminates an employee to comply with this 4
section shall not be liable for any claims made against the business entity or 5
employer by the terminated employee, provided that the termination is made 6
without regard to the race, ethnicity, or national origin of the employee and is 7
consistent with the antidiscrimination laws of this state and the United States. 8
(11) (a) In addition to the county attorneys of this state, the Attorney General shall 9
also have authority to bring a civil complaint in any court of competent 10
jurisdiction to enforce the requirements of this section. 11
(b) Any resident of this state may petition the Attorney General to bring an 12
enforcement action against a specific business entity or employer by means 13
of a written, signed petition. A valid petition shall include an allegation that 14
describes the alleged violator or violators, as well as the action constituting 15
the violation, and the date and location where the action occurred. 16
(c) A petition that alleges a violation on the basis of national origin, ethnicity, 17
or race shall be deemed invalid and shall not be acted upon. 18
(d) The Attorney General shall respond to any petition under this subsection 19
within sixty (60) days of receiving the petition, either by filing a civil 20
complaint in a court of competent jurisdiction or by informing the petitioner 21
in writing that the Attorney General has determined that filing a civil 22
complaint is not warranted. 23
(12) This section shall not apply to the relationship between a party and the employees 24
of an independent contractor performing work for the party and does not apply to 25
casual domestic labor performed within a household. 26
(13) (a) It is an affirmative defense to a violation of subsection (1) of this section 27 UNOFFICIAL COPY 25 RS BR 1270
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that a business entity or employer was entrapped. 1
(b) To claim entrapment, the business entity or employer shall admit by 2
testimony or other evidence the substantial elements of the violation. 3
(c) A business entity or employer who asserts an entrapment defense has the 4
burden of proving by clear and convincing evidence the following: 5
1. The idea of committing the violation started with law enforcement 6
officers or their agents rather than with the business entity or 7
employer; 8
2. The law enforcement officers or their agents urged and induced the 9
business entity or employer to commit the violation; and 10
3. The business entity or employer was not already predisposed to 11
commit the violation before the law enforcement officers or their 12
agents urged and induced the employer to commit the violation. 13
(14) In addition to actions taken by the state or political subdivisions thereof, the 14
Attorney General or the county attorney may bring an action to enforce the 15
requirements of this section in any District Court of a county in which the 16
business entity or employer does business. 17
(15) The terms of this section shall be interpreted consistently with 8 U.S.C. sec. 1324a 18
and any applicable federal rules and regulations. 19
SECTION 3. A NEW SECTION OF KRS CHAPTER 336 IS CREATED TO 20
READ AS FOLLOWS: 21
(1) The Kentucky Office of Homeland Security shall establish and maintain an E-22
Verify employer agent service for any business entity or employer in this state 23
with twenty-five (25) or fewer employees to use the E-Verify Program to verify an 24
employee's employment eligibility on behalf of the business entity or employer. 25
(2) The Kentucky Office of Homeland Security shall: 26
(a) Establish an E-Verify employer agent account with the United States 27 UNOFFICIAL COPY 25 RS BR 1270
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Department of Homeland Security; 1
(b) Enroll a participating business entity or employer in the E-Verify Program 2
on its behalf; and 3
(c) Conform to all federal statutes and regulations governing E-Verify 4
employer agents. 5
(3) The Kentucky Office of Homeland Security shall not charge a fee to a 6
participating business entity or employer for the E-Verify employer agent service. 7
(4) The Kentucky Office of Homeland Security's E-Verify employer agent service 8
shall accommodate a business entity or employer who wishes to communicate 9
with the Kentucky Office of Homeland Security by internet, by electronic mail, by 10
facsimile machine, by telephone, or in person, provided that the communication 11
is consistent with federal statutes and regulations governing E-Verify employer 12
agents. 13
(5) Before receiving any contract, grant, or incentive by the state, any political 14
subdivision thereof, or any state-funded entity, a business entity or employer shall 15
provide proof to the state, political subdivision thereof, or state-funded entity that 16
the business entity or employer is enrolled and is participating in the E-Verify 17
Program, either independently or through the Kentucky Office of Homeland 18
Security's E-Verify employer agent service. 19
(6) Every three (3) months, the Kentucky Office of Homeland Security shall request 20
from the United States Department of Homeland Security a list of every business 21
entity or employer in this state that is enrolled in the E-Verify Program. On 22
receipt of the list, the Kentucky Office of Homeland Security shall make the list 23
available on its website. 24
(7) A business entity or employer that is enrolled in the E-Verify Program, verifies 25
the employment eligibility of an employee in good faith pursuant to this section, 26
and acts in conformity with all applicable federal statutes and regulations is 27 UNOFFICIAL COPY 25 RS BR 1270
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immune from liability under Kentucky law for any action by an employee for 1
wrongful discharge or retaliation based on a notification from the E-Verify 2
Program that the employee is an unauthorized alien. 3
SECTION 4. A NEW SECTION OF KRS CHAPTER 45A IS CREATED TO 4
READ AS FOLLOWS: 5
(1) As used in this section: 6
(a) The following terms have the same meanings as in Section 1 of this Act: 7
1. "Alien"; 8
2. "Business entity"; 9
3. "Contractor"; 10
4. "Employee"; 11
5. "Employer"; 12
6. "Employment"; 13
7. "E-Verify" or "E-Verify Program"; 14
8. "Federal work authorization program"; 15
9. "Knows" or "knowingly"; 16
10. "Policy or practice"; 17
11. "State-funded entity"; 18
12. "Subcontractor"; and 19
13. "Unauthorized alien"; and 20
(b) "Contract" means a contract awarded by the state, any political subdivision 21
thereof, or any state-funded entity that was competitively bid. 22
(2) As a condition for the award of any contract, grant, or incentive by the state, any 23
political subdivision thereof, or any state-funded entity to a business entity or 24
employer that employs one (1) or more employees, the business entity or employer 25
shall not knowingly employ, hire for employment, or continue to employ an 26
unauthorized alien within the Commonwealth of Kentucky. 27 UNOFFICIAL COPY 25 RS BR 1270
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(3) As a condition for the award of any contract, grant, or incentive by the state, any 1
political subdivision thereof, or any state-funded entity to a business entity or 2
employer that employs one (1) or more employees within the Commonwealth of 3
Kentucky, the business entity or employer shall provide documentation 4
establishing that the business entity or employer is enrolled in the E-Verify 5
Program. During the performance of the contract, the business entity or employer 6
shall participate in the E-Verify Program and shall verify every employee that is 7
required to be verified according to the applicable federal rules and regulations. 8
(4) Any subcontractor on a project paid for by contract, grant, or incentive by the 9
state, any political subdivision thereof, or any state-funded entity shall not 10
knowingly employ, hire for employment, or continue to employ an unauthorized 11
alien within the Commonwealth of Kentucky and shall also enroll in the E-Verify 12
Program prior to performing any work on the project. Furthermore, during the 13
performance of the contract, the subcontractor shall participate in the E-Verify 14
Program and shall verify every employee that is required to be verified according 15
to the applicable federal rules and regulations. This subsection shall only apply to 16
subcontractors performing work on a project subject to this section and not to 17
collateral persons or business entities hired by the subcontractor. 18
(5) A contractor of any tier shall not be liable under this section when the contractor 19
contracts with its direct subcontractor who violates subsection (4) of this section 20
unless it is shown that the contractor knew or should have known that the direct 21
subcontractor was in violation of subsection (4) of this section. 22
(6) Upon a finding by a court of competent jurisdiction of a first violation of 23
subsection (2) of this section by any business entity or employer, including a 24
subcontractor: 25
(a) The business entity or employer shall be deemed in breach of contract and 26
the state, political subdivision thereof, or state-funded entity may terminate 27 UNOFFICIAL COPY 25 RS BR 1270
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the contract after providing notice and an opportunity to be heard; 1
(b) The court shall do all of the following: 2
1. Order the business entity or employer to terminate the employment of 3
every unauthorized alien; 4
2. Subject the business entity or employer to a three (3) year 5
probationary period throughout the state. During the probationary 6
period, the business entity or employer shall file quarterly reports with 7
the Finance and Administration Cabinet of each new employee who is 8
hired by the business entity or employer in the state; and 9
3. Order the business entity or employer to file, subject to the penalty of 10
perjury, a signed, sworn affidavit with the Finance and Administration 11
Cabinet within three (3) days after the order is issued by the court 12
stating that the business entity or employer has terminated the 13
employment of every unauthorized alien and the business entity or 14
employer will not knowingly or intentionally employ an unauthorized 15
alien in this state; 16
(c) If the court determines that the business entity or employer has a policy or 17
practice that violates this section, the court shall direct the applicable state, 18
county, or municipal governing bodies to suspend the business licenses or 19
permits of the business entity or employer for a period not to exceed sixty 20
(60) days specific to the location or locations where the unauthorized alien 21
performed work; and 22
(d) Before a business license or permit that has been suspended under 23
paragraph (c) of this subsection is reinstated, a legal representative of the 24
business entity or employer shall submit to the court a signed, sworn 25
affidavit stating that the business entity or employer is in compliance with 26
subsection (2) of this section and a copy of the Memorandum of 27 UNOFFICIAL COPY 25 RS BR 1270
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Understanding issued to the business entity or employer at the time of 1
enrollment in E-Verify. 2
(7) Upon a finding by a court of competent jurisdiction of a second violation of 3
subsection (2) of this section by a business entity or employer, including a 4
subcontractor, awarded a contract by the state, any political subdivision thereof, 5
or any state-funded entity that occurs within ten (10) years of a finding by a court 6
of competent jurisdiction of a first violation by the business entity or employer: 7
(a) The business entity or employer shall be deemed in breach of contract and 8
the state, political subdivision thereof, or state-funded entity shall terminate 9
the contract after providing notice and an opportunity to be heard; 10
(b) The court shall do all of the following: 11
1. Order the business entity or employer to terminate the employment of 12
every unauthorized alien; 13
2. Subject the business entity or employer to a five (5) year probationary 14
period throughout the state. During the probationary period, the 15
business entity or employer shall file quarterly reports with the 16
Finance and Administration Cabinet specifying each new employee 17
who is hired by the business entity or employer in the state; and 18
3. Order the business entity or employer to file, subject to the penalty of 19
perjury, a signed, sworn affidavit with the Finance and Administration 20
Cabinet within three (3) days after the order is issued by the court 21
stating that the business entity or employer has terminated the 22
employment of every unauthorized alien and the business entity or 23
employer will not knowingly or intentionally employ an unauthorized 24
alien in this state; 25
(c) If the court determines that the business entity or employer has a policy or 26
practice that violates this section, the court shall direct the applicable state, 27 UNOFFICIAL COPY 25 RS BR 1270
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county, or municipal governing body to suspend the business licenses or 1
permits of the business entity or employer for a period not less than sixty 2
(60) days and not to exceed one hundred twenty (120) days specific to the 3
location or locations where the unauthorized alien performed work; 4
(d) Before a business license or permit that has been suspended under 5
paragraph (c) of this subsection is reinstated, a legal representative of the 6
business entity or employer shall submit to the court a signed, sworn 7
affidavit stating that the business entity or employer is in compliance with 8
the provisions of subsection (2) of this section and a copy of the 9
Memorandum of Understanding issued to the business entity or employer at 10
the time of enrollment in E-Verify; and 11
(e) A finding by a court of competent jurisdiction of a second violation of 12
subsection (2) of this section that does not occur within ten (10) years of a 13
first violation shall: 14
(a) Be considered a second violation of subsection (2) of this section by 15
the business entity or employer; and 16
(b) Be penalized in accordance with subsection (6) of this section. 17
(8) Upon a finding by a court of competent jurisdiction of a third violation of 18
subsection (2) of this section by a business entity or employer, including a 19
subcontractor, awarded a contract by the state, any political subdivision thereof, 20
or any state-funded entity: 21
(a) The business entity or employer shall be deemed in breach of contract and 22
the state, political subdivision thereof, or state-funded entity shall terminate 23
the contract after providing notice and an opportunity to be heard; and 24
(b) The court shall direct the applicable state, county, or municipal governing 25
bodies to permanently revoke all business licenses or permits of the business 26
entity or employer. 27 UNOFFICIAL COPY 25 RS BR 1270
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(9) This section shall not be construed to deny any procedural mechanisms or legal 1
defenses included in the E-Verify Program or any other federal work 2
authorization program. 3
(10) A business entity or employer that has enrolled in the E-Verify Program and has 4
used the program to verify the work authorization of an employee shall not be 5
liable under this section for violations resulting from the hiring of that employee. 6
(11) The Finance and Administration Cabinet shall promulgate administrative 7
regulations in accordance with KRS Chapter 13A to administer this section. 8
(12) Compliance with this section may be verified by the contracting authority or any 9
state or local law enforcement agency at any time to ensure a contractual 10
agreement as provided for in this section is being met. 11
(13) Anything to the contrary notwithstanding, this section shall not apply to 12
agreements by the state, any political subdivision thereof, or any state-funded 13
entity relating to debt obligations by such entities. 14
(14) Any business entity or employer found in violation of this section that has had its 15
business license or permit suspended shall not, for the duration of the 16
suspension, be allowed, directly or indirectly, to procure or execute a license or 17
permit similar to those that have been suspended. 18
(15) All contracts or agreements to which the state, a political subdivision, or state-19
funded entity are a party shall include the following clause: "By signing this 20
contract, the contracting parties affirm, for the duration of the agreement, that 21
they will not violate federal immigration law or knowingly employ, hire for 22
employment, or continue to employ an unauthorized alien within the 23
Commonwealth of Kentucky. Furthermore, a contracting party found to be in 24
violation of this provision shall be deemed in breach of the agreement and shall 25
be responsible for all damages resulting therefrom." 26
(16) An action brought under this section shall be brought in Franklin Circuit Court. 27 UNOFFICIAL COPY 25 RS BR 1270
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Section 5. This Act takes effect January 1, 2026. 1