Local Everify Initiative

Summary of the Lawful Employment Ordinance

This initiative petition ordinance does the following four things:

***First*** It penalizes, through court action, employers who knowingly or intentionally hire unauthorized aliens by initially suspending their business licenses, forces them to report each new hire during a three year probationary period, agree to never hire an unauthorized alien again, and then permanently revokes all business licenses granted by local government entities on the second offense.

***Second*** This process may be initiated by any citizen filing a complaint with the county attorney’s office, with substantial indications of illegal employment. The unauthorized alien(s) listed in the complaint, once verified by the federal government, is tuned over to ICE and local law enforcement. Frivolous complaint results in a Class C misdemeanor being brought against someone making the frivolous complaint.

***Third*** It mandates the use of the E-verify system for all employers. The E-verify system becomes an indemnification (prevents prosecution) for the employer against knowingly or intentionally breaking the law for any employee that has been vetted through the E-verify system.

***Fourth*** It renders the recently enacted Utah guest worker permit program inoperable by keeping the unauthorized alien status of anyone participating in the program unchanged.

The county attorney is required, upon its enactment, to notify all employers of the new ordinance and it is especially noteworthy that a recent U S. Supreme Court decision allows a local government entity to penalize employers who knowingly or intentionally hire an unauthorized alien with the revocation of their business licenses.

(This generic document is available for download at bottom of page) 
 

???? County Lawful Employment Ordinance

Be it Ordained by ???? County as Follows:


SECTION 1. TITLE
This chapter shall be known and may be cited as the “
???? County Lawful Employment Ordinance”.


SECTION 2. FINDINGS AND DECLARATION OF PURPOSE

The people of ???? County find and declare the following:
  A. Federal and State laws require that certain conditions be met before a person may be authorized to work in this country.
  B. Federal law (
8 USC 1324a) and Utah State law (63G-12-301) both forbid the employment of unauthorized aliens.

  C. Further, both federal law (8 USC 1324) and Utah State law (76-10-2901) prohibit “encourag(ing) or induc(ing) an unauthorized alien to come to, enter, or reside in this state, knowing or in reckless disregard of the fact that the unauthorized alien's coming to, entry, or residence is or will be in violation of law.

  D. Recent US Supreme Court decision No. 09–115 affirmed that the use of E-verify can be mandated and penalties associated with Business Licenses are legal.

PURPOSE: This ordinance seeks to secure for those lawfully present in the United States and Utah, whether or not they are citizens of the United States, the right to work free of taxpayer subsidized illegal labor competition, and suppressed wages, caused by the influx of illegal aliens, to the fullest extent that these goals can be achieved consistent with the Constitution and Laws of the United States and State of Utah.


SECTION 3. DEFINITIONS

When used in this ordinance, the following words, terms and phrases shall have the meanings ascribed to them herein, and shall be construed so as to be consistent with state and federal law, including federal immigration law:
  A. “Business Entity” means any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit.
  (1) The term business entity shall include but not be limited to self-employed individuals, partnerships, corporations, contractors, and subcontractors.
  (2) The term business entity shall include any business entity that possesses a business license, any business entity that is exempt by law from obtaining such a business license, and any business entity that is operating unlawfully without such a business license.
  B. “Contractor” means a person, employer, subcontractor or business entity that enters into an agreement to perform any service or work or to provide a certain product in exchange for valuable consideration. This definition shall include but not be limited to a subcontractor, contract employee, or a recruiting or staffing entity.
  C. “Unauthorized Alien” means an alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, Section 1101 et seq. A state, county or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to 8 United States code section 1373(c).
  D. “Unlawful worker” means a person who does not have the legal right or authorization to work due to an impediment in any provision of federal, state or local law, including but not limited to a minor disqualified by nonage, or an unauthorized alien as defined by United States Code Title 8, Subsection 1324a(h)(3).
  E. “Work” means any job, task, employment, labor, personal services, or any other activity for which compensation is provided, expected, or due, including but not limited to all activities conducted by business entities.
  F. “E-Verify” means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, P.L. 104-208, Division C, Section 403(a); United States Code Title 8, subsection 1324(a), and operated by the United States Department of Homeland Security (or a successor program established by the federal government.)
  G. Department of Homeland Security E-Verify MOU means the computer generated Memorandum of Understanding provided by the Department of Homeland Security when the employer has completed the online training requirements and agreed to the conditions of E-Verify use.
 
SECTION 4. EMPLOYMENT OF UNAUTHORIZED ALIENS; PROHIBITION; FALSE AND FRIVOLOUS COMPLAINTS; VIOLATION; CLASSIFICATION; LICENSE SUSPENSION AND REVOCATION; RENDERING UTAH’S GUEST WORKER PERMIT PROGRAM INOPERABLE

A. An employer shall not intentionally employ an unauthorized alien or knowingly employ an unauthorized alien.

B. On receipt of a complaint that an employer allegedly intentionally employs an unauthorized alien or knowingly employs an unauthorized alien, the county attorney shall investigate whether the employer has violated subsection A. When investigating a complaint, the county attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 United States Code Section 1373(c). A State, county or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to 8 United States Code Section 1373(c). A person who knowingly files a false and frivolous complaint under this subsection is guilty of a Class C misdemeanor.

C. If, after an investigation, the county attorney determines that the complaint is not frivolous:

1. The county attorney shall notify the United States Immigration and Customs Enforcement of the unauthorized alien.

2. The county attorney shall notify the local law enforcement agency of the unauthorized alien.

D. An action for a violation of Subsection A shall be brought against the employer by the county attorney.  The county attorney shall not bring an action against any employer for any violation of Subsection A that occurs before sixty (60) days after this ordinance takes effect.  A second violation of this section shall be based only on an unauthorized alien who is employed by the employer after an action has been brought for a violation of Subsection A. 

E. For any action in court under this section, the court shall expedite the action, including assigning the hearing at the earliest practicable date.

F. On a finding of a violation of Subsection A:

1. For a first violation during a three year period that is a knowing violation of Subsection A, the court:

(a) Shall order the employer to terminate the employment of all unauthorized aliens.

(b) Shall order the employer to be subject to a three year probationary period. During the probationary period the employer shall file quarterly reports with the county attorney of each new employee who is hired by the employer at the specific location where the unauthorized alien performed work.

(c) Shall order the employer to file a signed sworn affidavit with the county attorney within three business days after the order is issued. 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. The court shall order the appropriate agencies to suspend all licenses subject to this subdivision that are held by the employer if the employer fails to file a signed sworn affidavit with the county attorney within three business days after the order is issued. All licenses that are suspended under this subdivision shall remain suspended until the employer files a signed sworn affidavit with the county attorney. Notwithstanding any other law, on filing of the affidavit the suspended licenses shall be reinstated immediately by the appropriate agencies for the purposes of this subdivision, 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 employer's business at the employer's business location where the unauthorized alien performed work. If a license is not necessary to operate the employer's business at the specific location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension under this subdivision are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other law, 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 county attorney and the county attorney shall maintain the copy pursuant to Subsection G.

(d) May order the appropriate agencies to suspend all licenses described in Subdivision (c) of this paragraph that are held by the employer for not to exceed ten business days. The court shall base its decision to suspend under this subdivision on any evidence or information submitted to it during the action for a violation of this subsection and shall consider the following factors, if relevant:

(i) The number of unauthorized aliens employed by the employer.

(ii) Any prior misconduct by the employer.

(iii) The degree of harm resulting from the violation.

(iv) Whether the employer made good faith efforts to comply with any applicable requirements.

(v) The duration of the violation.

(vi) The role of the directors, officers or principals of the employer in the violation.

(vii) Any other factors the court deems appropriate.

2. For a first violation during a five year period that is an intentional violation of Subsection A, the court shall:

(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. During the probationary period the employer shall file quarterly reports with the county attorney of each new employee who is hired by the employer at the specific location where the unauthorized alien performed work.

(c) Order the appropriate agencies to suspend all licenses, described in subdivision (d) of this paragraph that are held by the employer for a minimum of ten days. The court shall base its decision on the length of the suspension under this subdivision on any evidence or information submitted to it during the action for a violation of this subsection and shall consider the following factors, if relevant:

(i) The number of unauthorized aliens employed by the employer.

(ii) Any prior misconduct by the employer.

(iii) The degree of harm resulting from the violation.

(iv) Whether the employer made good faith efforts to comply with any applicable requirements.

(v) The duration of the violation.

(vi) The role of the directors, officers or principals of the employer in the violation.

(vii) Any other factors the court deems appropriate.

(d) Order the employer to file a signed sworn affidavit with the county attorney. 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. For the purposes of this subdivision, 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 employer's business at the employer's business location where the unauthorized alien performed work. If a license is not necessary to operate the employer's business at the specific location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension under this subdivision are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other law, 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 county attorney and the county attorney shall maintain the copy pursuant to Subsection G.

3. For a second violation of subsection a during the period of probation, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer and that are necessary to operate the employer's business at the employer's business location where the unauthorized alien performed work. If a license is not necessary to operate the employer's business at the specific 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.

G. The county attorney shall maintain copies of court orders that are received pursuant to Subsection F and shall maintain a database of the employers who have a first violation of Subsection A and make the court orders available on the county attorney's website.

H. On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 United States Code Section 1373(c). The federal government's determination creates a rebuttable presumption of the employee'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 8 United States Code Section 1373(c).

I. For the purposes of this section, proof of verifying the employment authorization of an employee through the basic E-Verify program as defined in P.L. 104-208, Division C, Section 403(a): United States Code Title 8, Subsection 1324a, creates a rebuttable presumption that an employer did not intentionally employ an unauthorized alien or knowingly employ an unauthorized alien.

J. For the purposes of this section, an employer who establishes that it has complied in good faith with the requirements of 8 United States Code Section 1324b establishes an affirmative defense that the employer did not intentionally or knowingly employ an unauthorized alien.


SECTION 5. VERIFICATION OF EMPLOYMENT; E-VERIFY PROGRAM

A.   It is unlawful for any business entity to recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or part within ???? County. Every business entity that applies for a business permit to engage in any type of work in the County shall sign an affidavit, prepared by the County, an agreement to not hire unlawful/illegal workers.

B.   After January 15, 2013, every employer, after hiring an employee, shall verify the employee eligibility of the employee through the E-verify program or updated equivalent.

C.    All businesses that employ one or more employee(s) requesting a license will sign an affidavit agreeing to use the U.S. Department of Homeland Security E-Verify Program for all new hires. A business that hires a worker(s) not lawfully present in the United States after this date, will be considered to have knowingly and intentionally hired the employee, unless E-Verify procedures were properly followed.

D.    In order to demonstrate compliance with this ordinance the business may submit a copy of their MOU (Memorandum of Understanding) with the U.S. Department of Homeland Security to be held in the business license file.


SECTION 6. GUEST WORKER:

Participation in any Utah State enacted guest worker permit program does not change the status of any unauthorized alien participating in such a program. The status of such unauthorized alien participating in any Utah State enacted guest worker permit program remains determined by 8 USC 1373(c) for purposes of this ordinance. 

SECTION 7. EMPLOYER NOTICE

A. On or before JANUARY 15, 2013, the county attorney shall provide a notice to every employer in the county of this ordinance, including the following:

1. A new county ordinance prohibits employers from intentionally employing an unauthorized alien or knowingly employing an unauthorized alien.

2. For a first violation of this new county ordinance during a three year period that is a knowing violation, the court will order the appropriate licensing agencies to suspend all licenses held by the employer unless the employer files a signed sworn affidavit with the district attorney or municipal attorney within three business days. The filed affidavit must 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. A license that is suspended will remain suspended until the employer files a signed sworn affidavit with the district attorney or municipal attorney. A copy of the court order will be made available on the county attorney’s website.

3. For a first violation of this new county ordinance during a five year period that is an intentional violation, the court will order the appropriate licensing agencies to suspend all licenses held by the employer for a minimum of ten days. The employer must file a signed sworn affidavit with the county attorney or municipal attorney. The filed affidavit must 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. A license that is suspended will remain suspended until the employer files a signed sworn affidavit with the county attorney or municipal attorney. A copy of the court order will be made available on the county attorney's website.

4. For a second violation of this new county ordinance, the court will order the appropriate licensing agencies to permanently revoke all licenses that are held by the employer.

5. Proof of verifying the employment authorization of an employee through the basic E-Verify, as added by this act, will create a rebuttable presumption that an employer did not violate the new law.


SECTION 8. SEVERABILITY

If any provision of this ordinance or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this ordinance that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.



 

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J. Q. Public,
Jul 14, 2011, 3:52 PM
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