Texas 2017 - 85th 1st C.S.

Texas House Bill HB315 Compare Versions

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

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1	1	85S10668 KSD-D
2	2	By: Fallon H.B. No. 315
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 Form I-9. Documentation
41	41	that satisfies the requirements of Form I-9 at the time of
42	42	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 not:
56	56	(A) a citizen or national of the United States;
57	57	or
58	58	(B) an alien who is lawfully admitted for
59	59	permanent residence in the United States under the federal
60	60	Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.) or
61	61	authorized to be employed by that Act or the United States attorney
62	62	general.
63	63	Sec. 53.002. EMPLOYEE STATUS. An employer may not classify
64	64	an individual performing services for the employer as an
65	65	independent contractor instead of as an employee of the employer
66	66	solely for the purpose of avoiding the requirements applicable to
67	67	an employer under this chapter.
68	68	Sec. 53.003. LICENSING AUTHORITIES SUBJECT TO CHAPTER. All
69	69	licensing authorities are subject to this chapter.
70	70	Sec. 53.004. RULES. The commission shall adopt rules for
71	71	the administration of this chapter.
72	72	SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON
73	73	NOT LAWFULLY PRESENT
74	74	Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF
75	75	PERSON NOT LAWFULLY PRESENT; LICENSE SUSPENSION AUTHORIZED. (a)
76	76	An employer may not knowingly employ a person not lawfully present.
77	77	(b) An employer who violates Subsection (a) is subject to
78	78	the suspension of each license held by the employer as provided by
79	79	this chapter.
80	80	Sec. 53.052. EXCEPTIONS. (a) An employer has not violated
81	81	Section 53.051(a) if:
82	82	(1) the employer, not more than l4 calendar days after
83	83	the commencement of the employee's employment, requested from the
84	84	employee and received and documented in the employee's employment
85	85	record lawful resident verification information consistent with
86	86	employer requirements under the federal Immigration Reform and
87	87	Control Act of 1986 (Pub. L. No. 99-603); and
88	88	(2) the lawful resident verification information
89	89	provided by the employee later was determined to be false.
90	90	(b) An employer has not violated Section 53.051(a) if the
91	91	employer verified the employment authorization status of the person
92	92	not more than 14 calendar days after the commencement of the
93	93	employee's employment through the E-verify program.
94	94	SUBCHAPTER C. ADMINISTRATIVE PROVISIONS
95	95	Sec. 53.101. FILING COMPLAINT. (a) A person who has reason
96	96	to believe that an employer has violated Section 53.051(a) may file
97	97	a complaint with the commission in accordance with this subchapter.
98	98	(b) A complaint must:
99	99	(1) be in writing on a form prescribed by the
100	100	commission; and
101	101	(2) be verified by the person making the complaint.
102	102	(c) A person may file a complaint under this section:
103	103	(1) in person at an office of the commission; or
104	104	(2) by mailing the complaint to an address designated
105	105	by the commission.
106	106	Sec. 53.102. INVESTIGATION AND PRELIMINARY DISMISSAL ORDER
107	107	OR REFERRAL ORDER. (a) On receipt of a complaint, an examiner
108	108	employed by the commission shall investigate the complaint in an
109	109	attempt to:
110	110	(1) verify information regarding the immigration
111	111	status of the relevant employee or employees of the employer
112	112	alleged to have violated Section 53.051(a); and
113	113	(2) determine whether a hearing should be conducted.
114	114	(b) During the investigation, the employer alleged to have
115	115	violated Section 53.051(a) shall specify all licenses held by the
116	116	employer.
117	117	(c) If the examiner determines that there is no substantial
118	118	evidence that the employer violated Section 53.051(a), the examiner
119	119	shall issue a preliminary dismissal order dismissing the complaint.
120	120	(d) If the examiner determines that there is substantial
121	121	evidence that the employer violated Section 53.051(a), the examiner
122	122	shall refer the complaint to a hearing tribunal established under
123	123	Section 53.103.
124	124	(e) The examiner shall mail notice of the preliminary
125	125	dismissal order or referral order to each party at that party's last
126	126	known address, as reflected by commission records.
127	127	Sec. 53.103. ESTABLISHMENT OF HEARING TRIBUNAL. The
128	128	commission shall establish one or more impartial hearing tribunals
129	129	to hear and decide complaints under this chapter.
130	130	Sec. 53.104. REQUEST FOR HEARING ON PRELIMINARY DISMISSAL
131	131	ORDER. (a) A party may request a hearing before a hearing tribunal
132	132	to appeal a preliminary dismissal order made under Section
133	133	53.102(c).
134	134	(b) The request for the hearing must be made in writing not
135	135	later than the 21st day after the date the examiner mails the notice
136	136	of the preliminary dismissal order.
137	137	Sec. 53.105. PRELIMINARY DISMISSAL ORDER FINAL IF HEARING
138	138	NOT REQUESTED. If neither party requests a hearing to appeal a
139	139	preliminary dismissal order made under Section 53.102(c) within the
140	140	period prescribed by Section 53.104, the order becomes the final
141	141	order of the commission for all purposes, and neither party is
142	142	entitled to judicial review of the order under this subchapter.
143	143	Sec. 53.106. NOTICE OF AND TIME FOR HEARING. (a) A notice
144	144	regarding a hearing conducted under this subchapter must be mailed
145	145	by the hearing tribunal not later than the 21st day after the date
146	146	the referral order or request for the hearing is received by the
147	147	commission.
148	148	(b) As soon as practicable, but not sooner than the 10th day
149	149	or later than the 45th day after the date a notice is mailed under
150	150	Subsection (a), the tribunal shall conduct the hearing.
151	151	Sec. 53.107. HEARING PROCEDURES. (a) A hearing conducted
152	152	under this subchapter is subject to the rules and hearings
153	153	procedures used by the commission in the determination of a claim
154	154	for unemployment compensation benefits.
155	155	(b) The hearing is not subject to Chapter 2001, Government
156	156	Code.
157	157	Sec. 53.108. ORDER AFTER HEARING. (a) After a hearing, if
158	158	the hearing tribunal finds by clear and convincing evidence that
159	159	the employer has violated Section 53.051(a), the hearing tribunal
160	160	shall:
161	161	(1) for a first violation, enter a written order:
162	162	(A) requiring the employer to:
163	163	(i) terminate the employment of each
164	164	employee who is a person not legally present; and
165	165	(ii) file with the hearing tribunal, within
166	166	30 business days after the date the order is entered, a sworn
167	167	affidavit stating that the employer has terminated the employment
168	168	of each of those employees; and
169	169	(B) notifying the employer that failure to file
170	170	the affidavit required by Paragraph (A)(ii) will result in the
171	171	suspension of the employer's licenses as provided by Subdivision
172	172	(2); or
173	173	(2) for a second or subsequent violation, or on a
174	174	finding that an employer has failed to file an affidavit required by
175	175	Subdivision (1)(A)(ii), enter a written order suspending for a
176	176	period of one year any license held by the employer.
177	177	(b) After a hearing, if the hearing tribunal does not find
178	178	by clear and convincing evidence that the employer has violated
179	179	Section 53.051(a), the hearing tribunal shall enter a written order
180	180	dismissing the complaint.
181	181	Sec. 53.109. NOTICE TO PARTIES AND FINALITY OF HEARING
182	182	TRIBUNAL ORDER. (a) The hearing tribunal shall mail to each party
183	183	to the hearing notice of the tribunal's decision. The notice shall
184	184	be mailed to a party's last known address, as reflected by
185	185	commission records.
186	186	(b) The order of the hearing tribunal becomes final on the
187	187	14th day after the date the order is mailed unless a further appeal
188	188	to the commission is initiated as provided by this subchapter.
189	189	Sec. 53.110. REMOVAL OR TRANSFER OF COMPLAINT PENDING
190	190	BEFORE HEARING TRIBUNAL. (a) The commission by order may remove to
191	191	itself or transfer to another hearing tribunal the proceedings on a
192	192	complaint before a hearing tribunal.
193	193	(b) The commission promptly shall mail to the parties to the
194	194	affected hearing notice of an order under Subsection (a).
195	195	(c) A quorum of the commission shall hear a proceeding
196	196	removed to the commission under Subsection (a).
197	197	Sec. 53.111. COMMISSION REVIEW OF HEARING TRIBUNAL ORDER.
198	198	The commission may:
199	199	(1) on its own motion:
200	200	(A) affirm, modify, or set aside an order issued
201	201	under Section 53.108 on the basis of the evidence previously
202	202	submitted in the case; or
203	203	(B) direct the taking of additional evidence; or
204	204	(2) permit any of the parties affected by the order to
205	205	initiate an appeal before the commission.
206	206	Sec. 53.112. NOTICE OF COMMISSION ACTION TO PARTIES. (a)
207	207	The commission shall mail to each party to an appeal under Section
208	208	53.111 notice of:
209	209	(1) the commission's decision; and
210	210	(2) the parties' right to judicial review of the order.
211	211	(b) The notice shall be mailed to a party's last known
212	212	address, as reflected by commission records.
213	213	Sec. 53.113. FINALITY OF COMMISSION ORDER. An order of the
214	214	commission becomes final on the 14th day after the date the order is
215	215	mailed unless before that date:
216	216	(1) the commission by order reopens the appeal; or
217	217	(2) a party to the appeal files a written motion for
218	218	rehearing.
219	219	Sec. 53.114. JUDICIAL REVIEW. (a) A party who has
220	220	exhausted the party's administrative remedies under this chapter,
221	221	other than a motion for rehearing, may bring a suit to appeal the
222	222	order.
223	223	(b) The suit must be filed not later than the 30th day after
224	224	the date the final order is mailed to the party.
225	225	(c) The commission and any other party to the proceeding
226	226	before the commission must be made defendants in the suit.
227	227	(d) The suit must be brought in the county of residence of
228	228	the party seeking judicial review. If the party is not a resident
229	229	of this state, the suit must be brought in the county in this state
230	230	in which the employer has its principal place of business.
231	231	(e) An appeal under this subchapter is by trial de novo with
232	232	the substantial evidence rule being the standard of review in the
233	233	manner as applied to an appeal from a final decision under Subtitle
234	234	A, Title 4.
235	235	Sec. 53.115. NOTICE TO LICENSING AUTHORITY OF FINAL ORDER
236	236	SUSPENDING LICENSE. The commission shall promptly mail to the
237	237	appropriate licensing authority a final order suspending a license
238	238	entered under this chapter.
239	239	Sec. 53.116. OTHER NOTICE ON FINAL ORDER FINDING VIOLATION.
240	240	(a) On the rendition of a final order under this chapter finding
241	241	that an employer has knowingly employed a person not lawfully
242	242	present, the commission shall notify the attorney general of that
243	243	finding.
244	244	(b) On receipt of notice under Subsection (a), the attorney
245	245	general shall promptly notify the United States Immigration and
246	246	Customs Enforcement and appropriate local law enforcement agencies
247	247	of the identity and address, if known, of each employee who is a
248	248	person not lawfully present.
249	249	SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES
250	250	Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On receipt
251	251	from the commission of a final order suspending a license, a
252	252	licensing authority shall immediately determine if the authority
253	253	has issued a license to the person named on the order and, if a
254	254	license has been issued:
255	255	(1) record the suspension of the license in the
256	256	licensing authority's records;
257	257	(2) report the suspension as appropriate; and
258	258	(3) demand surrender of the suspended license if
259	259	required by law for other cases in which a license is suspended.
260	260	(b) A licensing authority shall implement the terms of a
261	261	final order suspending a license without additional review or
262	262	hearing. The authority may provide notice as appropriate to the
263	263	license holder or to others concerned with the license.
264	264	(c) A licensing authority may not modify, remand, reverse,
265	265	vacate, or stay an order suspending a license issued under this
266	266	chapter and may not review, vacate, or reconsider the terms of a
267	267	final order suspending a license.
268	268	(d) A person who is the subject of a final order suspending a
269	269	license is not entitled to a refund for any fee or deposit paid to
270	270	the licensing authority.
271	271	(e) A person who continues to engage in the business,
272	272	occupation, profession, or other licensed activity after the
273	273	implementation of the order suspending a license by the licensing
274	274	authority is liable for the same civil and criminal penalties
275	275	provided for engaging in the licensed activity without a license or
276	276	while a license is suspended that apply to any other license holder
277	277	of that licensing authority.
278	278	(f) A licensing authority is exempt from liability to a
279	279	license holder for any act authorized under this chapter performed
280	280	by the authority.
281	281	(g) Except as provided by this chapter, an order suspending
282	282	a license does not affect the power of a licensing authority to
283	283	grant, deny, suspend, revoke, terminate, or renew a license.
284	284	(h) An order issued under this chapter to suspend a license
285	285	of a person applies to each license issued by the licensing
286	286	authority subject to the order for which the person is eligible.
287	287	The licensing authority may not issue or renew any other license for
288	288	the person during the suspension period.
289	289	Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing
290	290	authority may charge a fee to a person who is the subject of an order
291	291	suspending a license in an amount sufficient to recover the
292	292	administrative costs incurred by the authority under this chapter.
293	293	SECTION 2. Chapter 53, Labor Code, as added by this Act,
294	294	applies only to a violation that occurs on or after the effective
295	295	date of this Act.
296	296	SECTION 3. This Act takes effect December 1, 2017.