Texas 2017 - 85th Regular

Texas House Bill HB3792 Compare Versions

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

Old	New	Differences
1	1	85R8577 KSD-D
2	2	By: Fallon H.B. No. 3792
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to a prohibition against the knowing employment of persons
8	8	not lawfully present in the United States and the suspension of
9	9	licenses held by certain employers for the knowing employment of
10	10	those persons; authorizing a fee.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Subtitle B, Title 2, Labor Code, is amended by
13	13	adding Chapter 53 to read as follows:
14	14	CHAPTER 53. EMPLOYMENT OF PERSONS NOT LAWFULLY PRESENT IN UNITED
15	15	STATES
16	16	SUBCHAPTER A. GENERAL PROVISIONS
17	17	Sec. 53.001. DEFINITIONS. In this chapter:
18	18	(1) "Commission" means the Texas Workforce
19	19	Commission.
20	20	(2) "Employee" means an individual who is employed by
21	21	an employer for compensation. The term includes an individual
22	22	employed on a part-time basis.
23	23	(3) "Employer" means a person, other than a
24	24	governmental entity, who:
25	25	(A) employs one or more employees; or
26	26	(B) acts directly or indirectly in the interests
27	27	of an employer in relation to an employee.
28	28	(4) "Employment" means any service, including service
29	29	in interstate commerce, that is performed for wages or under a
30	30	contract of hire, whether written or oral or express or implied.
31	31	The term does not include any service performed by an individual for
32	32	wages if it is shown that the individual is free from control or
33	33	direction in the performance of the service, both under any
34	34	contract of service and in fact.
35	35	(5) "E-verify program" has the meaning assigned by
36	36	Section 673.001, Government Code.
37	37	(6) "Lawful resident verification information" means
38	38	the documentation required by the United States Department of
39	39	Homeland Security for completing the employment eligibility
40	40	verification form commonly referred to as the Form I-9.
41	41	Documentation that satisfies the requirements of the Form I-9 at
42	42	the time of employment is lawful resident verification information.
43	43	(7) "License" means a license, certificate,
44	44	registration, permit, or other authorization that:
45	45	(A) is issued by a licensing authority;
46	46	(B) is subject before expiration to renewal,
47	47	suspension, revocation, forfeiture, or termination by a licensing
48	48	authority; and
49	49	(C) is required for a person to practice or
50	50	engage in a particular business, occupation, or profession.
51	51	(8) "Licensing authority" means a department,
52	52	commission, board, office, or other agency of the state or a
53	53	political subdivision of the state that issues or renews a license.
54	54	(9) "Person not lawfully present" means a person who
55	55	at the time of employment is neither an alien who is lawfully
56	56	admitted for permanent residence in the United States under the
57	57	federal Immigration and Nationality Act (8 U.S.C. Section 1101 et
58	58	seq.) nor authorized to be employed by that Act or the United States
59	59	attorney general.
60	60	Sec. 53.002. EMPLOYEE STATUS. An employer may not classify
61	61	an individual performing services for the employer as an
62	62	independent contractor instead of as an employee of the employer
63	63	solely for the purpose of avoiding the requirements applicable to
64	64	an employer under this chapter.
65	65	Sec. 53.003. LICENSING AUTHORITIES SUBJECT TO CHAPTER. All
66	66	licensing authorities are subject to this chapter.
67	67	Sec. 53.004. RULES. The commission shall adopt rules for
68	68	the administration of this chapter.
69	69	SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON
70	70	NOT LAWFULLY PRESENT
71	71	Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF
72	72	PERSON NOT LAWFULLY PRESENT; LICENSE SUSPENSION AUTHORIZED. (a)
73	73	An employer may not knowingly employ a person not lawfully present.
74	74	(b) An employer who violates Subsection (a) is subject to
75	75	the suspension of each license held by the employer as provided by
76	76	this chapter.
77	77	Sec. 53.052. EXCEPTIONS. (a) An employer has not violated
78	78	Section 53.051(a) if:
79	79	(1) the employer, at least l4 calendar days after the
80	80	commencement of the employee's employment, requested from the
81	81	employee and received and documented in the employee's employment
82	82	record lawful resident verification information consistent with
83	83	employer requirements under the federal Immigration Reform and
84	84	Control Act of 1986 (Pub. L. No. 99-603); and
85	85	(2) the lawful resident verification information
86	86	provided by the employee later was determined to be false.
87	87	(b) An employer has not violated Section 53.051(a) if the
88	88	employer verified the employment authorization status of the person
89	89	at least 14 calendar days after the commencement of the employee's
90	90	employment through the E-verify program.
91	91	SUBCHAPTER C. ADMINISTRATIVE PROVISIONS
92	92	Sec. 53.101. FILING COMPLAINT. (a) A person who has reason
93	93	to believe that an employer has violated Section 53.051(a) may file
94	94	a complaint with the commission in accordance with this subchapter.
95	95	(b) A complaint must:
96	96	(1) be in writing on a form prescribed by the
97	97	commission; and
98	98	(2) be verified by the person making the complaint.
99	99	(c) A person may file a complaint under this section:
100	100	(1) in person at an office of the commission; or
101	101	(2) by mailing the complaint to an address designated
102	102	by the commission.
103	103	Sec. 53.102. INVESTIGATION AND PRELIMINARY DISMISSAL ORDER
104	104	OR REFERRAL ORDER. (a) On receipt of a complaint, an examiner
105	105	employed by the commission shall investigate the complaint in an
106	106	attempt to:
107	107	(1) verify information regarding the immigration
108	108	status of the relevant employee or employees of the employer
109	109	alleged to have violated Section 53.051(a); and
110	110	(2) determine whether a hearing should be conducted.
111	111	(b) During the investigation, the employer alleged to have
112	112	violated Section 53.051(a) shall specify all licenses held by the
113	113	employer.
114	114	(c) If the examiner determines that there is no substantial
115	115	evidence that the employer violated Section 53.051(a), the examiner
116	116	shall issue a preliminary dismissal order dismissing the complaint.
117	117	(d) If the examiner determines that there is substantial
118	118	evidence that the employer violated Section 53.051(a), the examiner
119	119	shall refer the complaint to a hearing tribunal established under
120	120	Section 53.103.
121	121	(e) The examiner shall mail notice of the preliminary
122	122	dismissal order or referral order to each party at that party's last
123	123	known address, as reflected by commission records.
124	124	Sec. 53.103. ESTABLISHMENT OF HEARING TRIBUNALS. The
125	125	commission shall establish one or more impartial hearing tribunals
126	126	to hear and decide complaints under this chapter.
127	127	Sec. 53.104. REQUEST FOR HEARING ON PRELIMINARY DISMISSAL
128	128	ORDER. (a) A party may request a hearing before a hearing tribunal
129	129	to appeal a preliminary dismissal order made under Section
130	130	53.102(c).
131	131	(b) The request for the hearing must be made in writing not
132	132	later than the 21st day after the date the examiner mails the notice
133	133	of the preliminary dismissal order.
134	134	Sec. 53.105. PRELIMINARY DISMISSAL ORDER FINAL IF HEARING
135	135	NOT REQUESTED. If neither party requests a hearing to appeal a
136	136	preliminary dismissal order made under Section 53.102(c) within the
137	137	period prescribed by Section 53.104, the order becomes the final
138	138	order of the commission for all purposes, and neither party is
139	139	entitled to judicial review of the order under this subchapter.
140	140	Sec. 53.106. NOTICE OF AND TIME FOR HEARING. (a) A notice
141	141	regarding a hearing conducted under this subchapter must be mailed
142	142	by the hearing tribunal not later than the 21st day after the date
143	143	the referral order or request for the hearing is received by the
144	144	commission.
145	145	(b) As soon as practicable, but not later than the 45th day
146	146	after the date a notice is mailed under Subsection (a), the tribunal
147	147	shall conduct the hearing.
148	148	Sec. 53.107. HEARING PROCEDURES. (a) A hearing conducted
149	149	under this subchapter is subject to the rules and hearings
150	150	procedures used by the commission in the determination of a claim
151	151	for unemployment compensation benefits.
152	152	(b) The hearing is not subject to Chapter 2001, Government
153	153	Code.
154	154	Sec. 53.108. ORDER AFTER HEARING. (a) After a hearing, if
155	155	the hearing tribunal finds by clear and convincing evidence that
156	156	the employer has violated Section 53.051(a), the hearing tribunal
157	157	shall:
158	158	(1) for a first violation, enter a written order:
159	159	(A) requiring the employer to:
160	160	(i) terminate the employment of each
161	161	employee who is a person not legally present; and
162	162	(ii) file with the hearing tribunal, within
163	163	30 business days after the date the order is entered, a sworn
164	164	affidavit stating that the employer has terminated the employment
165	165	of each of those employees; and
166	166	(B) notifying the employer that failure to file
167	167	the affidavit required by Paragraph (A)(ii) will result in the
168	168	suspension of the employer's licenses as provided by Subdivision
169	169	(2); or
170	170	(2) for a second or subsequent violation, or on a
171	171	finding that an employer has failed to file an affidavit required by
172	172	Subdivision (1)(A)(ii), enter a written order suspending for a
173	173	period of one year any license held by the employer.
174	174	(b) After a hearing, if the hearing tribunal does not find
175	175	by clear and convincing evidence that the employer has violated
176	176	Section 53.051(a), the hearing tribunal shall enter a written order
177	177	dismissing the complaint.
178	178	Sec. 53.109. NOTICE TO PARTIES AND FINALITY OF HEARING
179	179	TRIBUNAL ORDER. (a) The hearing tribunal shall mail to each party
180	180	to the hearing notice of the tribunal's decision. The notice shall
181	181	be mailed to a party's last known address, as reflected by
182	182	commission records.
183	183	(b) The order of the hearing tribunal becomes final on the
184	184	14th day after the date the order is mailed unless a further appeal
185	185	to the commission is initiated as provided by this subchapter.
186	186	Sec. 53.110. REMOVAL OR TRANSFER OF COMPLAINT PENDING
187	187	BEFORE HEARING TRIBUNAL. (a) The commission by order may remove to
188	188	itself or transfer to another hearing tribunal the proceedings on a
189	189	complaint before a hearing tribunal.
190	190	(b) The commission promptly shall mail to the parties to the
191	191	affected hearing notice of the order under Subsection (a).
192	192	(c) A quorum of the commission shall hear a proceeding
193	193	removed to the commission under Subsection (a).
194	194	Sec. 53.111. COMMISSION REVIEW OF HEARING TRIBUNAL ORDER.
195	195	The commission may:
196	196	(1) on its own motion:
197	197	(A) affirm, modify, or set aside an order issued
198	198	under Section 53.108 on the basis of the evidence previously
199	199	submitted in the case; or
200	200	(B) direct the taking of additional evidence; or
201	201	(2) permit any of the parties affected by the order to
202	202	initiate an appeal before the commission.
203	203	Sec. 53.112. NOTICE OF COMMISSION ACTION TO PARTIES. (a)
204	204	The commission shall mail to each party to an appeal under Section
205	205	53.111 notice of:
206	206	(1) the commission's decision; and
207	207	(2) the parties' right to judicial review of the order.
208	208	(b) The notice shall be mailed to a party's last known
209	209	address, as reflected by commission records.
210	210	Sec. 53.113. FINALITY OF COMMISSION ORDER. An order of the
211	211	commission becomes final on the 14th day after the date the order is
212	212	mailed unless before that date:
213	213	(1) the commission by order reopens the appeal; or
214	214	(2) a party to the appeal files a written motion for
215	215	rehearing.
216	216	Sec. 53.114. JUDICIAL REVIEW. (a) A party who has
217	217	exhausted the party's administrative remedies under this chapter,
218	218	other than a motion for rehearing, may bring a suit to appeal the
219	219	order.
220	220	(b) The suit must be filed not later than the 30th day after
221	221	the date the final order is mailed to the party.
222	222	(c) The commission and any other party to the proceeding
223	223	before the commission must be made defendants in the suit.
224	224	(d) The suit must be brought in the county of residence of
225	225	the party seeking judicial review. If the party is not a resident
226	226	of this state, the suit must be brought in the county in this state
227	227	in which the employer has its principal place of business.
228	228	(e) An appeal under this subchapter is by trial de novo with
229	229	the substantial evidence rule being the standard of review in the
230	230	manner as applied to an appeal from a final decision under Subtitle
231	231	A, Title 4.
232	232	Sec. 53.115. NOTICE TO LICENSING AUTHORITY OF FINAL ORDER
233	233	SUSPENDING LICENSE. The commission shall promptly mail to the
234	234	appropriate licensing authority a final order suspending a license
235	235	entered under this chapter.
236	236	Sec. 53.116. OTHER NOTICE ON FINAL ORDER FINDING VIOLATION.
237	237	(a) On the rendition of a final order under this chapter finding
238	238	that an employer has knowingly employed a person not lawfully
239	239	present, the commission shall notify the attorney general of that
240	240	finding.
241	241	(b) On receipt of notice under Subsection (a), the attorney
242	242	general shall promptly notify the United States Immigration and
243	243	Customs Enforcement and appropriate local law enforcement agencies
244	244	of the identity and address, if known, of each employee who is a
245	245	person not lawfully present.
246	246	SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES
247	247	Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On receipt
248	248	from the commission of a final order suspending a license, a
249	249	licensing authority shall immediately determine if the authority
250	250	has issued a license to the person named on the order and, if a
251	251	license has been issued:
252	252	(1) record the suspension of the license in the
253	253	licensing authority's records;
254	254	(2) report the suspension as appropriate; and
255	255	(3) demand surrender of the suspended license if
256	256	required by law for other cases in which a license is suspended.
257	257	(b) A licensing authority shall implement the terms of a
258	258	final order suspending a license without additional review or
259	259	hearing. The authority may provide notice as appropriate to the
260	260	license holder or to others concerned with the license.
261	261	(c) A licensing authority may not modify, remand, reverse,
262	262	vacate, or stay an order suspending a license issued under this
263	263	chapter and may not review, vacate, or reconsider the terms of a
264	264	final order suspending a license.
265	265	(d) A person who is the subject of a final order suspending a
266	266	license is not entitled to a refund for any fee or deposit paid to
267	267	the licensing authority.
268	268	(e) A person who continues to engage in the business,
269	269	occupation, profession, or other licensed activity after the
270	270	implementation of the order suspending a license by the licensing
271	271	authority is liable for the same civil and criminal penalties
272	272	provided for engaging in the licensed activity without a license or
273	273	while a license is suspended that apply to any other license holder
274	274	of that licensing authority.
275	275	(f) A licensing authority is exempt from liability to a
276	276	license holder for any act authorized under this chapter performed
277	277	by the authority.
278	278	(g) Except as provided by this chapter, an order suspending
279	279	a license does not affect the power of a licensing authority to
280	280	grant, deny, suspend, revoke, terminate, or renew a license.
281	281	(h) An order issued under this chapter to suspend a license
282	282	of a person applies to each license issued by the licensing
283	283	authority subject to the order for which the person is eligible.
284	284	The licensing authority may not issue or renew any other license for
285	285	the person during the suspension period.
286	286	Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing
287	287	authority may charge a fee to a person who is the subject of an order
288	288	suspending a license in an amount sufficient to recover the
289	289	administrative costs incurred by the authority under this chapter.
290	290	SECTION 2. Chapter 53, Labor Code, as added by this Act,
291	291	applies only to a violation that occurs on or after the effective
292	292	date of this Act.
293	293	SECTION 3. This Act takes effect September 1, 2017.