130th Ohio General Assembly
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H. B. No. 286  As Introduced
As Introduced

129th General Assembly
Regular Session
2011-2012
H. B. No. 286


Representatives Combs, Bubp 

Cosponsors: Representatives Thompson, Adams, R., Adams, J., Brenner, Ruhl, Derickson, Johnson, Newbold, McClain, Maag, Young, Martin 



A BILL
To amend section 4113.99 and to enact sections 4113.81 to 4113.88 of the Revised Code to adopt provisions related to the employment of unauthorized aliens.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 4113.99 be amended and sections 4113.81, 4113.82, 4113.83, 4113.84, 4113.85, 4113.86, 4113.87, and 4113.88 of the Revised Code be enacted to read as follows:
Sec. 4113.81.  As used in sections 4113.81 to 4113.88 of the Revised Code:
(A) "E-verify program" means the employment verification pilot program as jointly administered by the United States department of homeland security and the social security administration or any of its successor programs.
(B) "Knowingly employ an unauthorized alien" means the actions described in the "Immigration Reform and Control Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a. This term shall be interpreted consistently with the "Immigration Reform and Control Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a and any applicable federal rules and regulations.
(C)(1) "License" means any agency permit, certificate, approval, registration, charter, or similar form of authorization that is required by law and that is issued by any agency for the purposes of operating a business in this state.
(2) "License" includes all of the following:
(a) Articles of incorporation or organization under Title XVII of the Revised Code;
(b) A certificate of limited partnership issued under section 1782.08 of the Revised Code;
(c) A license issued to a foreign corporation under section 1703.04 of the Revised Code.
(3) "License" does not include either of the following:
(a) Any permit or license issued under any environmental laws as defined by section 3745.70 of the Revised Code;
(b) Any professional license.
(D) "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 the "Immigration Reform and Control Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a.
Sec. 4113.82.  (A)(1) No employer shall knowingly employ an unauthorized alien.
(2) No employer purposefully shall employ an unauthorized alien.
(3) No individual knowingly shall file a false and frivolous complaint under section 4113.83 of the Revised Code.
(B) Every employer, after hiring an employee, shall verify the employment eligibility of the employee through the e-verify program.
(C) For purposes of division (A)(1) of this section, an employer violates that division if the employer uses a contract, subcontract, or other independent contractor agreement to obtain the labor of an alien in this state and the employer knowingly contracts with an alien the employer knows is an unauthorized alien or with a person whom the employer knows employs or contracts with an unauthorized alien to perform the labor.
(D) For purposes of division (A)(2) of this section, an employer violates that division if the employer uses a contract, subcontract, or other independent contractor agreement to obtain the labor of an alien in this state and the employer purposefully contracts with an alien the employer knows is an unauthorized alien or with a person whom the employer knows employs or contracts with an unauthorized alien to perform the labor.
Sec. 4113.83.  The attorney general shall prescribe a complaint form for a person to allege a violation of division (A)(1) or (2) of section 4113.82 of the Revised Code. The attorney general shall not require the complainant to list the complainant's social security number on the complaint form or to have the complaint form notarized. A complainant shall submit the complaint to the attorney general or to the prosecuting attorney of the county in which the alleged unauthorized alien is or was employed by the employer. On receipt of a complaint on a prescribed complaint form that an employer allegedly knowingly or purposefully employs an unauthorized alien, the attorney general or prosecuting attorney shall investigate whether the employer has violated division (A)(1) or (2) of section 4113.82 of the Revised Code, as alleged in the complaint. Nothing in this section shall be construed to prohibit an individual from filing an anonymous complaint on a form other than the prescribed complaint form. If the attorney general or a prosecuting attorney receives a complaint that is not submitted on a prescribed complaint form, the attorney general or prosecuting attorney may, but is not required to, investigate whether the employer has violated division (A)(1) or (2) of section 4113.82 of the Revised Code as alleged in the complaint. The attorney general or prosecuting attorney shall not investigate complaints that are based solely on race, color, or national origin.
The county sheriff or any other local law enforcement officer may assist in investigating a complaint. When investigating a complaint, the attorney general or prosecuting attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to the federal "Omnibus Consolidated Appropriations Act, 1997," 110 Stat. 3009, 8 U.S.C. 1373(c), as amended. An officer or employee of the state or a political subdivision of the state shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States.
Sec. 4113.84.  (A) If, after an investigation conducted under section 4113.83 of the Revised Code, the attorney general or prosecuting attorney determines that the complaint is not false and frivolous, the attorney general or prosecuting attorney shall do all of the following, as applicable:
(1) Notify the United States department of homeland security or its successor agency regarding the status of the unauthorized alien;
(2) Notify the local law enforcement agency regarding the status of the unauthorized alien;
(3) If the complaint was originally filed with the attorney general, notify the appropriate prosecuting attorney to allow the prosecuting attorney to bring an action pursuant to division (B) of this section.
(B) If a prosecuting attorney of the county where an unauthorized alien employee allegedly is or was employed by an employer conducts an investigation under section 4113.83 of the Revised Code and determines that reasonable evidence exists that the employer violated division (A)(1) or (2) of section 4113.82 of the Revised Code, or if that prosecuting attorney receives a notice under division (A)(3) of this section, the prosecuting attorney shall bring an action for a violation of division (A)(1) or (2) of section 4113.82 of the Revised Code against the employer in the court of common pleas of the county where the unauthorized alien employee allegedly is or was employed by the employer. The prosecuting attorney shall not bring an action against any employer for any violation of division (A)(1) or (2) of section 4113.82 of the Revised Code that occurred prior to the effective date of this section. A second violation of this section shall be based only on any additional unauthorized aliens employed by the employer after a previous action has been brought against an employer for a violation of division (A)(1) or (2) of section 4113.82 of the Revised Code.
(C) For any action brought pursuant to this section, the court shall expedite the action, including assigning the hearing at the earliest practicable date.
Sec. 4113.85.  (A) In an action brought pursuant to section 4113.84 of the Revised Code, for purposes of determining whether an employee is an unauthorized alien, a court shall consider only a determination with respect to that alien's immigration status made by the federal government pursuant to the federal "Omnibus Consolidated Appropriations Act, 1997," 110 Stat. 3009, 8 U.S.C. 1373(c), as amended. The federal government's determination creates a rebuttable presumption of the alien's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to the federal "Omnibus Consolidated Appropriations Act, 1997," 110 Stat. 3009, 8 U.S.C. 1373(c), as amended.
(B) For purposes of section 4113.84 of the Revised Code, proof of verifying the employment authorization of an employee through the e-verify program creates a rebuttable presumption that an employer did not knowingly or purposefully employ an unauthorized alien.
(C) For purposes of section 4113.84 of the Revised Code, an employer who establishes that the employer has complied in good faith with the requirements of the federal "Immigration Reform and Control Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a(b), as amended, establishes an affirmative defense that the employer did not knowingly or purposefully employ an unauthorized alien in violation of division (A)(1) or (2) of section 4113.82 of the Revised Code. An employer is considered to have complied with the requirements of the federal "Immigration Reform and Control Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a(b), as amended, notwithstanding an isolated, sporadic, or accidental technical or procedural failure to meet the requirements, if a good faith attempt was made to comply with the requirements of that act.
(D)(1) It is an affirmative defense to a violation of division (A)(1) or (2) of section 4113.82 of the Revised Code that an employer was entrapped. To claim entrapment, the employer shall admit to the substantial elements of the violation through the employer's testimony or by the use of other evidence. An employer who asserts an entrapment defense has the burden of proving all of the following elements by a preponderance of the evidence:
(a) The idea of committing the violation started with a peace officer or an agent of the officer rather than with the employer.
(b) The peace officer or agent urged and induced the employer to commit the violation.
(c) The employer was not predisposed to commit the violation before the peace officer or agent urged and induced the employer to commit the violation.
(2) An employer does not establish the defense of entrapment if the employer was predisposed to violate division (A)(1) or (2) of section 4113.82 of the Revised Code and the peace officer or agent merely provided the employer with an opportunity to commit the violation. A peace officer or an agent of the officer has not entrapped an employer if the officer or agent merely used a ruse or concealed the officer's or agent's identity. The conduct of a peace officer or an agent of the officer may be considered in determining if an employer has proven entrapment.
Sec. 4113.86.  (A)(1) If a court, pursuant to an action brought under section 4113.84 of the Revised Code, determines that an employer has committed a first violation of division (A)(1) of section 4113.82 of the Revised Code, the court shall do all of the following:
(a) Order the employer to terminate the employment of all unauthorized aliens;
(b) Order the employer to be subject to a three-year probationary period for the business location where the unauthorized alien performed work;
(c) Order the employer to file a signed affidavit of the type described in division (A)(4) of this section with the prosecuting attorney of the county where the violation occurred within three business days after the order is issued.
(2) If a court pursuant to an action brought under section 4113.84 of the Revised Code determines that an employer has committed a first violation of division (A)(1) of section 4113.82 of the Revised Code, the court may order the appropriate agencies to suspend all licenses described in division (A)(4) of this section that are held by the employer for a period not to exceed ten business days. The court shall determine whether to suspend an employer's licenses based upon any evidence or information submitted to the court during the action and shall consider any of the following factors, as applicable:
(a) The number of unauthorized aliens employed by the employer;
(b) Any prior misconduct committed by the employer;
(c) The degree of harm resulting from the violation;
(d) Whether the employer made good faith efforts to comply with any applicable requirements;
(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 considers appropriate.
(3) During the probationary period described in division (A)(1)(b) of this section, the employer shall file quarterly reports in the form provided in section 3121.892 of the Revised Code with the prosecuting attorney of the county where the violation occurred documenting each new employee who is hired by the employer after the date the court determined the employer violated division (A)(1) of section 4113.82 of the Revised Code and who is employed at the business location where the unauthorized alien performed work.
(4) The affidavit described in division (A)(1)(c) of this section shall state that the employer has terminated the employment of all unauthorized aliens employed by the employer in this state and that the employer will not purposefully or knowingly employ an unauthorized alien in this state. If the employer fails to file the affidavit with the prosecuting attorney within three business days after the date the order is issued, the court shall order the appropriate agencies to suspend all licenses described in this division held by the employer. On receipt of the court's order and notwithstanding any other law to the contrary, the appropriate agencies shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the attorney general, and the attorney general shall maintain the copy pursuant to section 4113.88 of the Revised Code.
For the purposes of division (A)(4) of this section, a license subject to suspension is any license held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, any license held by the employer at the employer's primary place of business is subject to suspension.
A license remains suspended until the employer files the affidavit required under division (A)(1)(c) of this section with the prosecuting attorney. Notwithstanding any other law to the contrary, the appropriate agency shall reinstate the suspended license upon the employer's filing of the affidavit with the prosecuting attorney.
(B) For a second violation of division (A)(1) of section 4113.82 of the Revised Code, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.
(C) A violation is considered a first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this section or section 4113.87 of the Revised Code for that employer's business location. A violation is considered a second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this section or section 4113.87 of the Revised Code for that employer's business location.
Sec. 4113.87.  (A)(1) If a court, pursuant to an action brought under section 4113.84 of the Revised Code, determines that an employer has committed a first violation of division (A)(2) of section 4113.82 of the Revised Code, the court shall do all of the following:
(a) Order the employer to terminate the employment of all unauthorized aliens;
(b) Order the employer to be subject to a five-year probationary period for the business location where the unauthorized alien performed work;
(c) Order the appropriate agencies to suspend all licenses described in division (A)(4) of section 4113.86 of the Revised Code held by the employer for a minimum of ten days;
(d) Order the employer to file a signed affidavit of the type described in division (A)(4) of this section with the prosecuting attorney of the county where the violation occurred within three business days after the order is issued.
(2) During the probationary period described in division (A)(1)(b) of this section, the employer shall file quarterly reports in the form provided in section 3121.892 of the Revised Code with the prosecuting attorney of each new employee who is hired by the employer after the date the court determined the employer violated division (A)(2) of section 4113.82 of the Revised Code and who is employed at the business location where the unauthorized alien performed work.
(3) The court shall base its decision on the length of the suspension described in division (A)(1)(c) of this section on any evidence or information submitted to it during the action and shall consider the factors described in divisions (A)(2)(a) to (g) of section 4113.86 of the Revised Code, as applicable.
(4) The affidavit described in division (A)(1)(d) of this section shall state that the employer has terminated the employment of all unauthorized aliens employed by the employer in this state and that the employer will not purposefully or knowingly employ an unauthorized alien in this state. If the employer fails to file the affidavit with the prosecuting attorney within three business days after the date the order is issued, the court shall order the appropriate agencies to extend the suspension of all licenses described in division (A)(4) of section 4113.86 of the Revised Code held by the employer until the employer files the affidavit required under division (A)(1)(d) of this section. On receipt of the court's order and notwithstanding any other law to the contrary, the appropriate agencies shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the attorney general and the attorney general shall maintain the copy pursuant to section 4113.88 of the Revised Code.
A license remains suspended until the employer files the affidavit required under division (A)(1)(d) of this section with the prosecuting attorney. Notwithstanding any other law to the contrary, the appropriate agency shall reinstate the suspended license upon the employer's filing of the affidavit with the prosecuting attorney.
(B) For a second violation of division (A)(2) of section 4113.82 of the Revised Code, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.
(C) A violation is considered a first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this section or section 4113.86 of the Revised Code for that employer's business location. A violation is considered a second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this section or section 4113.86 of the Revised Code for that employer's business location.
Sec. 4113.88.  The attorney general shall do all of the following:
(A) Maintain copies of all court orders received pursuant to section 4113.86 or 4113.87 of the Revised Code;
(B) Maintain a database that includes the name of the employer who has committed a first violation of division (A)(1) or (2) of section 4113.82 of the Revised Code and the address of the business location where that violation occurred;
(C) Make the court orders available on the web site maintained by the attorney general.
Sec. 4113.99.  (A) Whoever violates section 4113.15 of the Revised Code is guilty of a misdemeanor of the first degree.
(B) Whoever violates section 4113.16, 4113.18, or 4113.19 of the Revised Code is guilty of a minor misdemeanor.
(C) Whoever violates section 4113.17 of the Revised Code is guilty of a minor misdemeanor for a first offense; for each subsequent offense such person is guilty of a misdemeanor in the fourth degree.
(D) Whoever violates division (A)(3) of section 4113.82 of the Revised Code is guilty of a misdemeanor of the fourth degree.
Section 2. That existing section 4113.99 of the Revised Code is hereby repealed.
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