85R2627 MTB/KSD-F
By: Hall S.B. No. 85
A BILL TO BE ENTITLED
AN ACT
relating to the verification of employment authorization by state
contractors and state grant recipients, including the use of the
federal E-verify program, and to authorization for the suspension
of certain licenses held by private employers for the knowing
employment of persons not lawfully present in this state;
authorizing a fee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 2264, Government Code, is
amended to read as follows:
CHAPTER 2264. CERTAIN RESTRICTIONS ON [USE OF CERTAIN] PUBLIC
SUBSIDIES AND STATE CONTRACTS AND GRANTS
SECTION 2. Section 2264.101, Government Code, is
transferred to Subchapter B, Chapter 2264, Government Code,
redesignated as Section 2264.054, Government Code, and amended to
read as follows:
Sec. 2264.054 [2264.101]. RECOVERY. (a) A public
agency, local taxing jurisdiction, or economic development
corporation, or the attorney general on behalf of the state or a
state agency, may bring a civil action to recover any amounts owed
to the public agency, state or local taxing jurisdiction, or
economic development corporation under this subchapter [chapter].
(b) The public agency, local taxing jurisdiction, economic
development corporation, or attorney general, as applicable, shall
recover court costs and reasonable attorney's fees incurred in an
action brought under Subsection (a).
(c) A business is not liable for a violation of this
subchapter [chapter] by a subsidiary, affiliate, or franchisee of
the business, or by a person with whom the business contracts.
SECTION 3. The heading to Subchapter C, Chapter 2264,
Government Code, is amended to read as follows:
SUBCHAPTER C. VERIFICATION OF NEW EMPLOYEES BY STATE CONTRACTORS
AND GRANT RECIPIENTS [ENFORCEMENT]
SECTION 4. Subchapter C, Chapter 2264, Government Code, is
amended by adding Sections 2264.1011, 2264.102, 2264.103, and
2264.104 to read as follows:
Sec. 2264.1011. DEFINITIONS. In this subchapter:
(1) "E-verify program" has the meaning assigned by
Section 673.001.
(2) "State agency" has the meaning assigned by Section
2103.001.
Sec. 2264.102. VERIFICATION BY CONTRACTORS. (a) A state
agency may not award a contract for goods or services within this
state to a contractor unless the contractor:
(1) registers with and participates in the E-verify
program to verify information of all new employees; or
(2) verifies the employment authorization status of
all new employees by requiring each employee to provide an
unexpired United States passport or:
(A) one of the following documents:
(i) an original or certified copy of a birth
certificate issued by a bureau of vital statistics for a state;
(ii) a Consular Report of Birth Abroad or
Certificate of Birth Abroad issued by the United States Department
of State;
(iii) a Certificate of United States
Citizenship issued by the federal Department of Homeland Security
or the United States Department of State including an
identification photograph; or
(iv) a Certificate of Naturalization issued
by the federal Department of Homeland Security or the United States
Department of State including an identification photograph; and
(B) one of the following documents:
(i) an unexpired driver's license or
identification card issued by a state;
(ii) an unexpired federal, state, or local
government identification card; or
(iii) an unexpired military identification
card for active duty, reserve, or retired personnel with an
identification photograph.
(b) Each contract with a state agency must include the
following statement:
"______________ (name of contractor) certifies that
__________ (name of contractor) is not ineligible to receive this
contract under Subchapter C, Chapter 2264, Government Code, and
acknowledges that if this certification is inaccurate, the
contractor may be barred from participating in state contracts."
(c) If a state agency determines that a contractor was
ineligible to have the contract awarded under Subsection (a), the
state agency shall refer the matter to the comptroller for action.
(d) Each state agency shall develop procedures for the
administration of this section.
Sec. 2264.103. BARRING FROM STATE CONTRACTS. (a) Using
procedures prescribed under Section 2155.077, the comptroller
shall bar a contractor from participating in state contracts if the
comptroller determines that the contractor was awarded a contract
in violation of Section 2264.102.
(b) Debarment under this section is for a period of one
year.
Sec. 2264.104. VERIFICATION BY GRANT RECIPIENTS. (a) A
state agency may not award a grant unless the grant recipient:
(1) registers with and participates in the E-verify
program to verify information of all new employees; or
(2) verifies the employment authorization status of
all new employees by requiring each employee to provide an
unexpired United States passport or:
(A) one of the following documents:
(i) an original or certified copy of a birth
certificate issued by a bureau of vital statistics for a state;
(ii) a Consular Report of Birth Abroad or
Certificate of Birth Abroad issued by the United States Department
of State;
(iii) a Certificate of United States
Citizenship issued by the federal Department of Homeland Security
or the United States Department of State including an
identification photograph; or
(iv) a Certificate of Naturalization issued
by the federal Department of Homeland Security or the United States
Department of State including an identification photograph; and
(B) one of the following documents:
(i) an unexpired driver's license or
identification card issued by a state;
(ii) an unexpired federal, state, or local
government identification card; or
(iii) an unexpired military identification
card for active duty, reserve, or retired personnel with an
identification photograph.
(b) Each grant contract or agreement with a state agency
must include the following statement:
"______________ (name of grant recipient) certifies that
__________ (name of grant recipient) is not ineligible to receive
this grant under Subchapter C, Chapter 2264, Government Code, and
acknowledges that if this certification is inaccurate, the grant
may be terminated without further payment."
(c) If a state agency determines that a grant recipient was
ineligible to have the grant awarded under Subsection (a), the
state agency shall notify the grant recipient in writing that the
grant recipient must comply with Subsection (a) before the 31st day
after the date the grant recipient is notified.
(d) The state agency shall terminate the grant without
further obligation to the grant recipient on the 31st day after the
date the grant recipient is notified under Subsection (c) if,
before that date, the grant recipient has not provided evidence
that the grant recipient has complied with Subsection (a).
(e) Each state agency shall develop procedures for the
administration of this section.
SECTION 5. Subtitle B, Title 2, Labor Code, is amended by
adding Chapter 53 to read as follows:
CHAPTER 53. EMPLOYMENT OF PERSONS NOT LAWFULLY PRESENT IN UNITED
STATES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 53.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Texas Workforce
Commission.
(2) "Employee" means an individual who is employed by
an employer for compensation. The term includes an individual
employed on a part-time basis.
(3) "Employer" means a person, other than a
governmental entity, who:
(A) employs one or more employees; or
(B) acts directly or indirectly in the interests
of an employer in relation to an employee.
(4) "Employment" means any service, including service
in interstate commerce, that is performed for wages or under a
contract of hire, whether written or oral or express or implied.
The term does not include any service performed by an individual for
wages if it is shown that the individual is free from control or
direction in the performance of the service, both under any
contract of service and in fact.
(5) "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 licensing
authority; and
(C) is required for a person to practice or
engage in a particular business, occupation, or profession.
(6) "Licensing authority" means a department,
commission, board, office, or other agency of the state or a
political subdivision of the state that issues or renews a license.
(7) "Person not lawfully present" means a person who
at the time of employment is neither an alien who is lawfully
admitted for permanent residence in the United States under the
federal Immigration and Nationality Act (8 U.S.C. Section 1101 et
seq.) nor an individual who is authorized to be employed by that
Act.
Sec. 53.002. EMPLOYEE STATUS. An employer may not classify
an individual performing services for the employer as an
independent contractor instead of as an employee of the employer
solely for the purpose of avoiding the requirements applicable to
an employer under this chapter.
Sec. 53.003. LICENSING AUTHORITIES SUBJECT TO CHAPTER. All
licensing authorities are subject to this chapter.
Sec. 53.004. RULES. The commission shall adopt rules for
the administration of this chapter.
SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON
NOT LAWFULLY PRESENT
Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF
PERSON NOT LAWFULLY PRESENT; LICENSE SUSPENSION AUTHORIZED. (a) An
employer may not knowingly employ a person not lawfully present.
(b) An employer who violates Subsection (a) is subject to
the suspension of each license held by the employer as provided by
this chapter.
Sec. 53.052. EXCEPTION. (a) In this section, "E-verify
program" has the meaning assigned by Section 673.001, Government
Code.
(b) An employer has not violated Section 53.051(a) if the
employer verified the employment authorization status of the person
not later than the third business day after the commencement of the
employee's employment through the E-verify program.
SUBCHAPTER C. ADMINISTRATIVE PROVISIONS
Sec. 53.101. FILING COMPLAINT. (a) A person who has reason
to believe that an employer has violated Section 53.051(a) may file
a complaint with the commission in accordance with this subchapter.
(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.
Sec. 53.102. INVESTIGATION AND PRELIMINARY DISMISSAL ORDER
OR REFERRAL ORDER. (a) On receipt of a complaint, an examiner
employed by the commission shall investigate the complaint in an
attempt to:
(1) verify information regarding the immigration
status of the relevant employee or employees of the employer
alleged to have violated Section 53.051(a); and
(2) determine whether a hearing should be conducted.
(b) During the investigation, the employer alleged to have
violated Section 53.051(a) shall specify all licenses held by the
employer.
(c) If the examiner determines that there is no substantial
evidence that the employer violated Section 53.051(a), the examiner
shall issue a preliminary dismissal order dismissing the complaint.
(d) If the examiner determines that there is substantial
evidence that the employer violated Section 53.051(a), the examiner
shall refer the complaint to a hearing tribunal established under
Section 53.103.
(e) The examiner shall mail notice of the preliminary
dismissal order or referral order to each party at that party's last
known address, as reflected by commission records.
Sec. 53.103. ESTABLISHMENT OF HEARING TRIBUNALS. The
commission shall establish one or more impartial hearing tribunals
to hear and decide complaints under this chapter.
Sec. 53.104. REQUEST FOR HEARING ON PRELIMINARY DISMISSAL
ORDER. (a) A party may request a hearing before a hearing tribunal
to appeal a preliminary dismissal order made under Section
53.102(c).
(b) The request for the hearing must be made in writing not
later than the 21st day after the date the examiner mails the notice
of the preliminary dismissal order.
Sec. 53.105. PRELIMINARY DISMISSAL ORDER FINAL IF HEARING
NOT REQUESTED. If neither party requests a hearing to appeal a
preliminary dismissal order made under Section 53.102(c) within the
period prescribed by Section 53.104, the order becomes the final
order of the commission for all purposes, and neither party is
entitled to judicial review of the order under this subchapter.
Sec. 53.106. NOTICE OF AND TIME FOR HEARING. (a) A notice
regarding a hearing conducted under this subchapter must be mailed
by the hearing tribunal not later than the 21st day after the date
the referral order or request for the hearing is received by the
commission.
(b) As soon as practicable, but not later than the 45th day
after the date a notice is mailed under Subsection (a), the tribunal
shall conduct the hearing.
Sec. 53.107. HEARING PROCEDURES. (a) A hearing conducted
under this subchapter is subject to the rules and hearings
procedures used by the commission in the determination of a claim
for unemployment compensation benefits.
(b) The hearing is not subject to Chapter 2001, Government
Code.
Sec. 53.108. ORDER AFTER HEARING. (a) After a hearing, if
the hearing tribunal finds by clear and convincing evidence that
the employer has violated Section 53.051(a), the hearing tribunal
shall:
(1) for a first violation, enter a written order:
(A) requiring the employer to:
(i) terminate the employment of each
employee who is a person not legally present; and
(ii) file with the hearing tribunal, within
30 business days after the date the order is entered, a sworn
affidavit stating that the employer has terminated the employment
of each of those employees; and
(B) notifying the employer that failure to file
the affidavit required by Paragraph (A)(ii) will result in the
suspension of the employer's licenses as provided by Subdivision
(2); or
(2) for a second or subsequent violation, or on a
finding that an employer has failed to file an affidavit required by
Subdivision (1)(A)(ii), enter a written order suspending for a
period of one year any license held by the employer.
(b) After a hearing, if the hearing tribunal does not find
by clear and convincing evidence that the employer has violated
Section 53.051(a), the hearing tribunal shall enter a written order
dismissing the complaint.
Sec. 53.109. NOTICE TO PARTIES AND FINALITY OF HEARING
TRIBUNAL ORDER. (a) The hearing tribunal shall mail to each party to
the hearing notice of the tribunal's decision. The notice shall be
mailed to a party's last known address, as reflected by commission
records.
(b) The order of the hearing tribunal becomes final on the
14th day after the date the order is mailed unless a further appeal
to the commission is initiated as provided by this subchapter.
Sec. 53.110. REMOVAL OR TRANSFER OF COMPLAINT PENDING
BEFORE HEARING TRIBUNAL. (a) The commission by order may remove to
itself or transfer to another hearing tribunal the proceedings on a
complaint before a hearing tribunal.
(b) The commission promptly shall mail to the parties to the
affected hearing notice of the order under Subsection (a).
(c) A quorum of the commission shall hear a proceeding
removed to the commission under Subsection (a).
Sec. 53.111. COMMISSION REVIEW OF HEARING TRIBUNAL ORDER.
The commission may:
(1) on its own motion:
(A) affirm, modify, or set aside an order issued
under Section 53.108 on the basis of the evidence previously
submitted in the case; or
(B) direct the taking of additional evidence; or
(2) permit any of the parties affected by the order to
initiate an appeal before the commission.
Sec. 53.112. NOTICE OF COMMISSION ACTION TO PARTIES. (a)
The commission shall mail to each party to an appeal under Section
53.111 notice of:
(1) the commission's decision; and
(2) the parties' right to judicial review of the order.
(b) The notice shall be mailed to a party's last known
address, as reflected by commission records.
Sec. 53.113. FINALITY OF COMMISSION ORDER. An order of the
commission becomes final on the 14th day after the date the order is
mailed unless before that date:
(1) the commission by order reopens the appeal; or
(2) a party to the appeal files a written motion for
rehearing.
Sec. 53.114. JUDICIAL REVIEW. (a) A party who has exhausted
the party's administrative remedies under this chapter, other than
a motion for rehearing, may bring a suit to appeal the order.
(b) The suit must be filed not later than the 30th day after
the date the final order is mailed to the party.
(c) The commission and any other party to the proceeding
before the commission must be made defendants in the suit.
(d) The suit must be brought in the county of residence of
the party seeking judicial review. If the party is not a resident
of this state, the suit must be brought in the county in this state
in which the employer has its principal place of business.
(e) An appeal under this subchapter is by trial de novo with
the substantial evidence rule being the standard of review in the
manner as applied to an appeal from a final decision under Subtitle
A, Title 4.
Sec. 53.115. NOTICE TO LICENSING AUTHORITY OF FINAL ORDER
SUSPENDING LICENSE. The commission shall promptly mail to the
appropriate licensing authority a final order suspending a license
entered under this chapter.
SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES
Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On receipt
from the commission of a final order suspending a license, a
licensing authority shall immediately determine if the authority
has issued a license to the person named on the order and, if a
license has been issued:
(1) record the suspension of the license in the
licensing authority's records;
(2) report the suspension as appropriate; and
(3) demand surrender of the suspended license if
required by law for other cases in which a license is suspended.
(b) A licensing authority shall implement the terms of a
final order suspending a license without additional review or
hearing. The authority may provide notice as appropriate to the
license holder or to others concerned with the license.
(c) A licensing authority may not modify, remand, reverse,
vacate, or stay an order suspending a license issued under this
chapter and may not review, vacate, or reconsider the terms of a
final order suspending a license.
(d) A person who is the subject of a final order suspending a
license is not entitled to a refund for any fee or deposit paid to
the licensing authority.
(e) A person who continues to engage in the business,
occupation, profession, or other licensed activity after the
implementation of the order suspending a license by the licensing
authority is liable for the same civil and criminal penalties
provided for engaging in the licensed activity without a license or
while a license is suspended that apply to any other license holder
of that licensing authority.
(f) A licensing authority is exempt from liability to a
license holder for any act authorized under this chapter performed
by the authority.
(g) Except as provided by this chapter, an order suspending
a license does not affect the power of a licensing authority to
grant, deny, suspend, revoke, terminate, or renew a license.
(h) An order issued under this chapter to suspend a license
of a person applies to each license issued by the licensing
authority subject to the order for which the person is eligible.
The licensing authority may not issue or renew any other license for
the person during the suspension period.
Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing
authority may charge a fee to a person who is the subject of an order
suspending a license in an amount sufficient to recover the
administrative costs incurred by the authority under this chapter.
SECTION 6. Each state agency subject to Subchapter C,
Chapter 2264, Government Code, as amended by this Act, shall
develop the procedures required under Sections 2264.102 and
2264.104, Government Code, as added by this Act, as applicable, not
later than October 1, 2017.
SECTION 7. Sections 2264.1011, 2264.102, 2264.103, and
2264.104, Government Code, as added by this Act, apply only in
relation to a:
(1) contract for which the request for bids or
proposals or other applicable expressions of interest is made
public on or after the effective date of this Act; and
(2) grant for which the notice of funds availability
or of funding opportunity is made public on or after the effective
date of this Act.
SECTION 8. Chapter 53, Labor Code, as added by this Act,
applies only to a violation that occurs on or after the effective
date of this Act.
SECTION 9. This Act takes effect September 1, 2017.