BILL NUMBER: AB 2421	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Huff

                        FEBRUARY 21, 2008

   An act to add Chapter 5 (commencing with Section 1705) to Part 6
of Division 2 of the Labor Code, relating to employment.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2421, as introduced, Huff. Employment of unauthorized aliens.
   Federal law prohibits the employment of an individual who, if an
alien, is neither an alien lawfully admitted for permanent residence
in the United States nor an alien otherwise authorized under federal
law or by the federal Attorney General to be employed in the United
States. Federal law establishes E-Verify as a free, online tool for
participating employers to verify the employment eligibility of new
employees and provides other methods for verifying the employment
eligibility of new employees.
   This bill would require the state Attorney General, county
counsel, or district attorney of a county in which the board of
supervisors has not appointed a county counsel, to investigate a
complaint alleging that an employer has intentionally employed an
unauthorized alien. If the complaint is determined to not be false,
then the state Attorney General or the county counsel or district
attorney of a county, as applicable, would be required to notify
specified local and federal entities of the unauthorized alien. The
bill also would establish as a misdemeanor the intentional filing of
a false complaint that alleges an employer has intentionally employed
an unauthorized alien.
   The bill would require the county counsel or district attorney of
a county, as applicable, to bring an action in superior court for the
violation if it occurred on or after January 1, 2009, and the court
would be required to expedite the action. An employer who the court
finds to have intentionally employed an unauthorized alien would
temporarily or permanently lose specified business licenses relating
to the business location at which the unauthorized alien performed
work based on whether it is the first, 2nd, or 3rd offense of the
employer and evidence and information related to the offense.
   The bill would require the state Attorney General to maintain
copies of court orders related to the intentional employment of
unauthorized aliens, and to maintain a database of employers with one
offense and make the corresponding court orders available on the
Internet Web site of the state Attorney General.
   The bill would provide an employer with a rebuttable presumption
that he, she, or it did not violate the prohibition on the
intentional employment of an unauthorized alien if he, she, or it
provides proof of verification of the employment eligibility of the
employee through E-Verify. An employer would establish an affirmative
defense to the violation of the prohibition by demonstrating
compliance with another federal provision regarding employment
eligibility verification. Beginning January 1, 2009, an employer
would be required to use E-Verify to verify the employment
eligibility of an employee.
   By creating a new crime and by requiring local government
officials to assume new responsibilities, this bill would impose
state-mandated local programs.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
   With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Chapter 5 (commencing with Section 1705) is added to
Part 6 of Division 2 of the Labor Code, to read:
      CHAPTER 5.  UNLAWFUL EMPLOYMENT OF UNAUTHORIZED ALIENS


   1705.  For purposes of this chapter, the following terms have the
following meanings:
   (a) "Agency" means a board, bureau, commission, department,
division, office, or other agency, or a subdivision thereof, of this
state or of a county, city, or district of any kind, or another
public entity in this state, including a charter city or county,
which issues licenses for purposes of operating a business in this
state.
   (b) "Employee" means a person who renders service in a business of
an employer for wages or pay.
   (c) "Employer" means a person who transacts business in this state
pursuant to a license issued by an agency and who employs one or
more persons in this state.
   (d) "E-Verify" means the employment eligibility verification
program, formerly known as the basic pilot program, which is jointly
administered by the United States Department of Homeland Security and
the United States Social Security Administration and established
pursuant to Section 401 and subsection (a) of Section 403 of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(Division C of P.L. 104-208), as amended, or its successor program.
   (e) "License" means a license, certificate, registration, or other
means to engage in a business or profession in this state that is
issued by an agency. However, "license" does not include a license
that is required to practice a particular profession, which is
required in addition to a business license necessary to operate a
business providing the products or services that are the subject of
that professional license.
   (f) "Person" has the same meaning as in Section 18.
   (g) "Unauthorized alien" means an alien who does not have the
legal right or authorization under federal law to work in the United
States as described in paragraph (3) of subsection (h) of Section
1324a of Title 8 of the United States Code.
   1706.  An employer shall not intentionally employ an unauthorized
alien.
   1707.  (a) (1) On receipt of a complaint that an employer has
intentionally employed an unauthorized alien, the Attorney General,
county counsel, or district attorney of a county in which the board
of supervisors has not appointed a county counsel, whose office
receives the complaint shall investigate whether the employer has
violated Section 1706. When investigating a complaint, the Attorney
General, district attorney, or county counsel shall not attempt to
independently determine whether an alien is authorized to work in the
United States, but rather shall verify the immigration status or
work authorization of the allegedly unauthorized alien with the
federal government pursuant to subsection (c) of Section 1373 of
Title 8 of the United States Code.
   (2) A person who intentionally files a false complaint under this
subdivision is guilty of a misdemeanor.
   (b) If, after an investigation, the Attorney General or district
attorney of a county or the county counsel, as applicable, determines
that the complaint is not false, he or she shall do the following:
   (1) Notify the Immigration and Customs Enforcement branch of the
Department of Homeland Security of the unauthorized alien.
   (2) Notify the appropriate local law enforcement agency of the
unauthorized alien.
   (3) If he or she is the Attorney General, notify the appropriate
district attorney of a county or the county counsel, as applicable,
of the outcome of the investigation and of the action required to be
taken pursuant to Section 1708.
   1708.  The county counsel or district attorney of a county, as
applicable, shall bring a civil action for a violation of Section
1706 against the employer in the superior court of the county where
the unauthorized alien is employed. However, the county counsel or
district attorney shall not bring an action against an employer for a
violation of Section 1706 that occurs before January 1, 2009. A
second or third violation of this section shall be based only on an
unauthorized alien who is employed by the employer after the first or
first and second, as appropriate, action has been brought for a
violation of Section 1706.
   1709.  (a) A court shall expedite an action brought under this
chapter.
   (b) When determining whether an employee is an unauthorized alien,
the court shall consider the determination of the federal government
pursuant to subsection (c) of Section 1373 of Title 8 of the United
States Code that is obtained pursuant to subdivision (a) of Section
1707. A determination of the federal government that the employee is
eligible for employment creates a rebuttable presumption of the
lawful status of the employee. The court may take judicial notice of
the determination of the federal government and may request the
federal government to provide automated or testimonial verification
pursuant to subsection (c) of Section 1373 of Title 8 of the United
States Code.
   1710.  If the court finds an employer has violated Section 1706,
the court shall take the following action:
   (a) For a first violation during a five-year period:
   (1) Order the employer to terminate the employment of all
unauthorized aliens.
   (2) Order the employer to be subject to a five-year probationary
period. During the probationary period, the employer shall file
quarterly reports with the county counsel or district attorney of the
county, as applicable, for each new employee who is hired by the
employer at the location where the unauthorized alien performed work.

   (3) Order the appropriate agencies to suspend all licenses
described in paragraph (4) that are held by the employer for a
minimum of 10 days. The court shall base its decision on the length
of the suspension under this paragraph on any evidence or information
submitted to it during the action for a violation of Section 1706
and shall consider the following factors, if relevant:
   (A) The number of unauthorized aliens employed by the employer.
   (B) Prior misconduct by the employer.
   (C) The degree of harm resulting from the violation.
   (D) Whether the employer made good faith efforts to comply with
the investigation conducted pursuant to Section 1707.
   (E) The duration of the violation.
   (F) The role of the directors, officers, or principals of the
employer in the violation.
   (G) Any other factors the court deems appropriate.
   (4) Order the employer to file a signed sworn affidavit with the
county counsel or district attorney of a county, as applicable. The
affidavit shall state that the employer has terminated the employment
of all unauthorized aliens and that the employer will not
intentionally or knowingly employ an unauthorized alien. All licenses
that are suspended under this subdivision shall remain suspended
until the employer files a signed sworn affidavit with the county
attorney. On receipt of the order of the court and notwithstanding
any other law, the appropriate agencies shall suspend the licenses
according to the order of the court. The court shall send a copy of
its order to the Attorney General.
   (5) The licenses that are subject to suspension under this
subdivision are all licenses that are held by the employer and that
are necessary to operate the business of the employer at the business
location where the unauthorized alien performed work. If a license
is not necessary to operate the business of the employer at the
specific location where the unauthorized alien performed work, but a
license is necessary to operate the business of the employer in
general, the licenses that are subject to suspension under this
subdivision are all licenses that are held by the employer at the
primary place of business of the employer, but a suspension of any of
these general business licenses shall apply only to the operation of
the business of the employer at the business location where the
unauthorized alien performed work.
   (b) For a second intentional violation of Section 1706 during the
period of probation, order the appropriate agencies to suspend for
six months all licenses that are held by the employer and that are
necessary to operate the business of the employer at the business
location where the unauthorized alien performed work. If a license is
not necessary to operate the business of the employer at the
specific location where the unauthorized alien performed work, but a
license is necessary to operate the business of the employer in
general, the court shall order the appropriate agencies to suspend
for six months all licenses that are held by the employer at the
primary place of business of the employer, but a suspension of any of
these general business licenses shall apply only to the operation of
the business of the employer at the business location where the
unauthorized alien performed work. On receipt of the order and
notwithstanding any other law, the appropriate agencies shall
immediately suspend the licenses.
   (c) For a third intentional violation of Section 1706 during the
period of probation, order the appropriate agencies to permanently
revoke all licenses that are held by the employer and that are
necessary to operate the business of the employer at the business
location where the unauthorized alien performed work. If a license is
not necessary to operate the business of the employer at the
specific location where the unauthorized alien performed work, but a
license is necessary to operate the business of the employer in
general, the court shall order the appropriate agencies to
permanently revoke all licenses that are held by the employer at the
primary place of business of the employer, but a suspension of any of
these general business licenses shall apply only to the operation of
the business of the employer at the business location where the
unauthorized alien performed work. On receipt of the order and
notwithstanding any other law, the appropriate agencies shall
immediately revoke the licenses.
   1711.  The Attorney General shall maintain copies of court orders
that are received pursuant to Section 1710, and shall maintain a
database of the employers who have a first violation of Section 1706
and make the corresponding court orders available on the Internet Web
site of the Attorney General.
   1712.  For purposes of this chapter, proof of verification of the
employment authorization of an employee through E-Verify creates a
rebuttable presumption that an employer did not intentionally employ
an unauthorized alien.
   1713.  For purposes of this chapter, an employer who establishes
compliance in good faith with the requirements subsection (b) of
Section 1324a of Title 8 of the United States Code establishes an
affirmative defense that he, she, or it did not intentionally employ
an unauthorized alien.
   1714.  Beginning January 1, 2009, an employer, after hiring an
employee, shall verify the employment eligibility of the employee
through E-Verify.
   1715.  This chapter shall be implemented only to the extent not
prohibited by federal law.
  SEC. 2.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
   However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.