Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1866 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	HOUSE DOCKET, NO. 2772 FILED ON: 1/19/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1866
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	David F. DeCoste
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act protecting Massachusetts workers.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:David F. DeCoste5th Plymouth1/19/2023Michael J. Soter8th Worcester1/30/2023 1 of 10
16	16	HOUSE DOCKET, NO. 2772 FILED ON: 1/19/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 1866
18	18	By Representative DeCoste of Norwell, a petition (accompanied by bill, House, No. 1866) of
19	19	David F. DeCoste and Michael J. Soter relative to the verification of employment eligibility of
20	20	employees through the federal employment authorization e-verify program. Labor and
21	21	Workforce Development.
22	22	[SIMILAR MATTER FILED IN PREVIOUS SESSION
23	23	SEE HOUSE, NO. 4162 OF 2021-2022.]
24	24	The Commonwealth of Massachusetts
25	25	_______________
26	26	In the One Hundred and Ninety-Third General Court
27	27	(2023-2024)
28	28	_______________
29	29	An Act protecting Massachusetts workers.
30	30	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
31	31	of the same, as follows:
32	32	1 Chapter 149 of the General Laws is hereby amended by striking out section 19C and
33	33	2inserting in place thereof the following section:-
34	34	3 Section 19C. (a) As used in this section, the following words shall, unless the context
35	35	4otherwise requires, have the following meanings:
36	36	5 “Agency”, any agency, department, board or commission of the commonwealth, a
37	37	6county, city or town that issues a license for purposes of operating a business. 2 of 10
38	38	7 “E-verify program”, the federal employment authorization verification program as jointly
39	39	8administered by the United States Department of Homeland Security and the Social Security
40	40	9Administration or any of its successor programs.
41	41	10 “Economic development incentive”, any grant, loan or performance-based incentive from
42	42	11any government entity awarded after January 1, 2022.
43	43	12 “Employee”, any person who provides services or labor for an employer for wages or
44	44	13other remuneration, excluding independent contractors.
45	45	14 “Employer”, any individual or type of organization that transacts business in the
46	46	15commonwealth, has a license issued by an agency in the commonwealth and employs 1 or more
47	47	16employees in this state. Employer shall include, but not be limited to, the commonwealth, any
48	48	17political subdivision thereof and self-employed persons. In the case of an independent contractor,
49	49	18employer shall mean the independent contractor and shall not mean the person or organization
50	50	19that uses the contract labor.
51	51	20 “Government entity”, the commonwealth and any political subdivision thereof that
52	52	21receives and uses tax revenues.
53	53	22 “Independent contractor”, any individual or entity that carries on an independent
54	54	23business, that contracts to do a piece of work according to the individual's or entity's own means
55	55	24and methods and that is subject to control only as to results. An independent contractor shall
56	56	25include an individual who performs services and is not an employee pursuant to section 3508 of
57	57	26the Internal Revenue Code. Whether an individual or entity is an independent contractor shall be
58	58	27determined on a case-by-case basis through various factors, including whether the individual or
59	59	28entity: 3 of 10
60	60	29 (1) supplies the tools or materials;
61	61	30 (2) makes services available to the general public;
62	62	31 (3) works or may work for a number of clients at the same time;
63	63	32 (4) has an opportunity for profit or loss as a result of labor or service provided;
64	64	33 (5) invests in the facilities for work;
65	65	34 (6) directs the order or sequence in which the work is completed; or
66	66	35 (7) determines the hours when the work is completed.
67	67	36 “Intentionally”, with respect to a result or to conduct described in this section defining an
68	68	37offense, that a person’s objective is to cause that result or to engage in that conduct.
69	69	38 “Knowingly employ an unauthorized alien”, to act in a manner described in 8 U.S.C.
70	70	391324a. This term shall be interpreted consistently with said 8 U.S.C. 1324a and any applicable
71	71	40federal rules and regulations.
72	72	41 “License”, any agency permit, certificate, approval, registration, charter or similar form
73	73	42of authorization that is required by law and that is issued by any agency for the purposes of
74	74	43operating a business in this state, including, but not limited to:
75	75	44 (1) articles of incorporation;
76	76	45 (2) certificates of limited partnership under section 8 of chapter 109;
77	77	46 (3) grants of authority issued under section 15.03 of chapter 156D; and
78	78	47 (4) sales and use tax certificates; 4 of 10
79	79	48 But shall not include:
80	80	49 (5) licenses issued pursuant to water or environmental regulations; and
81	81	50 (6) professional licenses.
82	82	51 “Social security number verification service”, the social security number verification
83	83	52service program administered by the Social Security Administration or any of its successor
84	84	53programs.
85	85	54 “Unauthorized alien”, as defined by 8 U.S.C. 1324a(h)(3). This term shall be interpreted
86	86	55consistently with said 8 U.S.C. 1324a(h)(3) and any applicable federal rules and regulations.
87	87	56 (b)(1) After hiring an employee, an employer shall verify the employment eligibility of
88	88	57the employee through the e-verify program.
89	89	58 (2) No employer shall intentionally or knowingly employ an unauthorized alien. If, when
90	90	59an employer uses a contract, subcontract or other independent contractor agreement to obtain the
91	91	60labor of an alien in the state, the employer intentionally or knowingly contracts with an
92	92	61unauthorized alien or with a person who employs or contracts with an unauthorized alien to
93	93	62perform the labor, the employer shall violate this subsection.
94	94	63 (c) The attorney general shall prescribe a complaint form for a person to allege a
95	95	64violation of subsection (b). The complainant shall not be required to list the complainant's social
96	96	65security number on the complaint form or to have the complaint form notarized. On receipt of a
97	97	66complaint on a prescribed complaint form that an employer allegedly failed to verify the
98	98	67employment eligibility of an employee through the e-verify program, or intentionally or
99	99	68knowingly employed an unauthorized alien, the attorney general or district attorney shall 5 of 10
100	100	69investigate whether the employer has violated subsection (b). If a complaint is received but is not
101	101	70submitted on a prescribed complaint form, the attorney general or district attorney may
102	102	71investigate whether the employer has violated subsection (b). This subsection shall not be
103	103	72construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed
104	104	73complaint form. The attorney general or district attorney shall not investigate complaints that are
105	105	74based solely on race, color or national origin. A complaint that is submitted to a district attorney
106	106	75shall be submitted to the district attorney in the county in which the alleged unauthorized alien is
107	107	76or was employed by the employer. The county sheriff or any other local law enforcement agency
108	108	77may assist in investigating a complaint. When investigating a complaint, the attorney general or
109	109	78district attorney shall verify the work authorization of any alleged unauthorized alien with the
110	110	79federal government pursuant to 8 U.S.C. 1373(c). A state, county or local official shall not
111	111	80attempt to independently make a final determination on whether an alien is authorized to work in
112	112	81the United States. An alien’s immigration status or work authorization status shall be verified
113	113	82with the federal government pursuant to 8 U.S.C. 1373(c). Whoever knowingly files a false and
114	114	83frivolous complaint shall be punished by a fine of not more than $500, or by imprisonment of not
115	115	84more than 30 days, or both.
116	116	85 (d) If, after an investigation, the attorney general or district attorney determines that the
117	117	86complaint is not false and frivolous:
118	118	87 (1) the attorney general or district attorney shall notify the United States Immigration and
119	119	88Customs Enforcement of any unauthorized alien;
120	120	89 (2) the attorney general or district attorney shall notify the local law enforcement agency
121	121	90of any unauthorized alien; and 6 of 10
122	122	91 (3) the attorney general shall notify the appropriate district attorney to bring an action
123	123	92pursuant to subsection (e) if the complaint was originally filed with the attorney general.
124	124	93 (e) An action for a violation of subsection (b) shall be brought against the employer by
125	125	94the district attorney in the county where the violation is alleged to have occurred. The district
126	126	95attorney shall not bring an action against any employer for any violation of subsection (b) that is
127	127	96alleged to have occurred before January 1, 2022.
128	128	97 (f) For any action in superior court under this section, the court shall expedite the action,
129	129	98including assigning the hearing at the earliest practicable date.
130	130	99 (g) On a finding of a violation of subsection (b):
131	131	100 (1) For a first violation, as described in paragraph (3), the court:
132	132	101 (i) shall order the employer to terminate the employment of all unauthorized aliens;
133	133	102 (ii) shall order the employer to be subject to a 3 year probationary period for the business
134	134	103location where the unauthorized alien performed work. During the probationary period, the
135	135	104employer shall file quarterly reports with the district attorney demonstrating compliance with
136	136	105subsection (b) with respect to each new employee who is hired by the employer at the business
137	137	106location where the violation occurred;
138	138	107 (iii) shall order the employer to file a signed sworn affidavit with the district attorney
139	139	108within 3 business days after the order is issued. The affidavit shall state that the employer shall
140	140	109verify the employment eligibility of all new employees through the e-verify program, that the
141	141	110employer has terminated the employment of all unauthorized aliens in the commonwealth and
142	142	111that the employer will not intentionally or knowingly employ an unauthorized alien in the 7 of 10
143	143	112commonwealth. The court shall order the appropriate agencies to suspend all licenses subject to
144	144	113this clause that are held by the employer if the employer fails to file a signed sworn affidavit with
145	145	114the district attorney within 3 business days after the order is issued. All licenses that are
146	146	115suspended under this clause shall remain suspended until the employer files a signed sworn
147	147	116affidavit with the district attorney. Notwithstanding any other general or special law to the
148	148	117contrary, on filing of the affidavit the suspended licenses shall be reinstated immediately by the
149	149	118appropriate agencies. For the purposes of this clause, the licenses subject to suspension shall be
150	150	119all licenses that are held by the employer specific to the business location where the unauthorized
151	151	120alien performed work. If the employer does not hold a license specific to the business location
152	152	121where the violation occurred, but a license is necessary to operate the employer's business in
153	153	122general, the licenses that are subject to suspension shall be all licenses that are held by the
154	154	123employer at the employer's primary place of business. On receipt of the court’s order and
155	155	124notwithstanding any other law, the appropriate agencies shall suspend the licenses according to
156	156	125the court's order. The court shall send a copy of the court's order to the attorney general and the
157	157	126attorney general shall maintain the copy pursuant to subsection (h); and
158	158	127 (iv) may order the appropriate agencies to suspend all licenses described in clause (iii)
159	159	128that are held by the employer for not longer than 10 business days. The court shall base its
160	160	129decision to suspend on any evidence or information submitted to the court during the action for a
161	161	130violation and shall consider the following factors, if relevant:
162	162	131 (A) number of unauthorized aliens employed by the employer;
163	163	132 (B) prior misconduct by the employer;
164	164	133 (C) degree of harm resulting from the violation; 8 of 10
165	165	134 (D) whether the employer made good faith efforts to comply with any applicable
166	166	135requirements;
167	167	136 (E) duration of the violation;
168	168	137 (F) role of the directors, officers or principals of the employer in the violation; and
169	169	138 (G) other factors the court deems appropriate.
170	170	139 (2) For a second violation, as described in paragraph (3), the court shall order the
171	171	140appropriate agencies to permanently revoke all licenses that are held by the employer specific to
172	172	141the business location where the violation occurred. If the employer does not hold a license
173	173	142specific to the business location where the violation occurred, but a license is necessary to
174	174	143operate the employer's business in general, the court shall order the appropriate agencies to
175	175	144permanently revoke all licenses that are held by the employer at the employer's primary place of
176	176	145business. On receipt of the order and notwithstanding any other law, the appropriate agencies
177	177	146shall immediately revoke the licenses.
178	178	147 (3) The violation shall be considered:
179	179	148 (i) A first violation by an employer at a business location if the violation did not occur
180	180	149during a probationary period ordered by the court under this subsection for that employer's
181	181	150business location.
182	182	151 (ii) A second violation by an employer at a business location if the violation occurred
183	183	152during a probationary period ordered by the court under this subsection for that employer's
184	184	153business location. 9 of 10
185	185	154 (h) The attorney general shall maintain copies of court orders that are received pursuant
186	186	155to subsection (g), shall maintain a database of the employers and business locations that have a
187	187	156first violation of subsection (b) and make the court orders available on the attorney general's
188	188	157website.
189	189	158 (i) On determining whether an employee is an unauthorized alien, the court shall consider
190	190	159only the federal government’s determination pursuant to 8 U.S.C. 1373(c). The federal
191	191	160government's determination shall create a rebuttable presumption of the employee's lawful status.
192	192	161The court may take judicial notice of the federal government's determination and may request the
193	193	162federal government to provide automated or testimonial verification pursuant to 8 U.S.C.
194	194	1631373(c).
195	195	164 (j) For the purposes of this section, proof of verifying the employment authorization of an
196	196	165employee through the e-verify program creates a rebuttable presumption that an employer did
197	197	166not intentionally or knowingly employ an unauthorized alien.
198	198	167 (k) For the purposes of this subsection, an employer that establishes that it has complied
199	199	168in good faith with the requirements of 8 U.S.C. 1324a(b) establishes an affirmative defense that
200	200	169the employer did not intentionally or knowingly employ an unauthorized alien. An employer is
201	201	170considered to have complied with the requirements of 8 U.S.C. 1324a(b), notwithstanding an
202	202	171isolated, sporadic or accidental technical or procedural failure to meet the requirements, if there
203	203	172is a good faith attempt to comply with the requirements.
204	204	173 (l) This section shall not be construed to require an employer to take any action that the
205	205	174employer believes in good faith would violate federal or state law. 10 of 10
206	206	175 (m) In addition to any other requirement for an employer to receive an economic
207	207	176development incentive from a government entity, the employer shall register with and participate
208	208	177in the e-verify program. Before receiving the economic development incentive, the employer
209	209	178shall provide proof to the government entity that the employer is registered with and is
210	210	179participating in the e-verify program. If the government entity determines that the employer is
211	211	180not complying with this subsection, the government entity shall notify the employer by certified
212	212	181mail of the government entity's determination of noncompliance and the employer's right to
213	213	182appeal the determination. On a final determination of noncompliance, the employer shall repay
214	214	183all monies received as an economic development incentive to the government entity within 30
215	215	184days of the final determination.
216	216	185 (n) Every 3 months the attorney general shall request from the United States Department
217	217	186of Homeland Security a list of employers from the commonwealth that are registered with the e-
218	218	187verify program. On receipt of the list of employers, the attorney general shall make the list
219	219	188available on the attorney general's website.
220	220	189 (o) The attorney general shall develop a statewide random auditing program to inspect
221	221	190employers for compliance with the provisions of this section and shall promulgate regulations
222	222	191governing the implementation of the audit program.