83R2713 KSD-F
By: Davis of Dallas H.B. No. 1117
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 WORK 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 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 other 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) "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.
[Sections 53.003-53.050 reserved for expansion]
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, 2011, 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.
[Sections 53.053-53.100 reserved for expansion]
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, 2013.