ASSEMBLY, No. 183

STATE OF NEW JERSEY

214th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION

 


 

Sponsored by:

Assemblyman  GARY R. CHIUSANO

District 24 (Sussex, Hunterdon and Morris)

Assemblywoman  ALISON LITTELL MCHOSE

District 24 (Sussex, Hunterdon and Morris)

 

 

 

 

SYNOPSIS

     Prohibits employment of unauthorized aliens.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel

  


An Act concerning the employment of unauthorized aliens and supplementing Title 34 of the Revised Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    As used in this act:

     "Agency" means any agency, department, board or commission of this State, or of any political subdivisions of this State, that issues a license for purposes of operating a business in this State.

     "Basic pilot program" means the basic employment verification pilot program as jointly administered by the United States Department of Homeland Security and the Social Security Administration or its successor program.

     "Employee" means any individual who is employed by an employer.

     "Employer" means any individual or entity that transacts business in this State that employs one or more individuals who perform employment services in this State.  “Employer” includes the State, any political subdivision of this State and self-employed persons.

     "Intentionally" means, with respect to a result or to conduct described in this act, that a person’s objective is to cause that result or to engage in that conduct.

     "Knowingly employ an unauthorized alien" means those actions described in 8 U.S.C.s.1324a.  This term shall be interpreted consistently with 8 U.S.C.s.1324a and any applicable federal rules and regulations.

     "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, and additionally includes, but is not limited to:

     (1)   A certificate of incorporation pursuant to N.J.S.14A:2-1 et seq.

     (2)   A certificate of authority pursuant to N.J.S.14A:13-1 et seq.

     (3)   A statement of qualification or a statement of foreign qualification pursuant to P.L.2000, c.161 (C.42:1A-47 et seq.)

     (4)   A certificate of limited partnership or a certificate of authority pursuant to P.L.1983, c.489 (C.42:2A-14 et seq.)

     (5)   A certificate of formation pursuant to P.L.1993, c.210 (C.42:2B-1 et seq.)

     "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 8U.S.C.s. 1324a(h)(3).


     2.    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 Attorney General or county prosecutor shall investigate whether the employer has violated subsection a. of this section.  When investigating a complaint, the Attorney General or county prosecutor shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8U.S.C.s. 1373(c).  A state, county or local official shall not attempt to independently make a final determination as to 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 8U.S.C.s. 1373(c).

     c.     If, after an investigation, the Attorney General or county prosecutor determines that the complaint is not frivolous:

     (1)   The Attorney General or county prosecutor shall notify the United States Immigration and Customs Enforcement of the unauthorized alien.

     (2)   The Attorney General or county prosecutor shall notify the local law enforcement agency of the unauthorized alien.

     (3)   The Attorney General shall notify the appropriate county prosecutor to bring an action pursuant to section 3 of this act if the complaint was originally filed with the Attorney General.

 

     3.    a.  An action for a violation of section 2 of this act shall be brought against the employer by the county prosecutor in the county where the unauthorized alien employee is employed.  The county prosecutor shall not bring an action against any employer for any violation of subsection a. of this section that occurs before January 1, 2009.  A second violation 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. of this section.

     b.    For any action in Superior Court under this act, the court shall expedite the action, including assigning the hearing at the earliest practicable date.

 

     4.    On a finding of a violation of section 2 of this act:

     a.     For a first violation during a three year period that is a knowing violation the court:

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

     (2)   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 prosecutor of each new employee who is hired by the employer at the specific location where the unauthorized alien performed work.

     (3)   Shall order the employer to file a signed sworn affidavit with the county prosecutor 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 paragraph (3) that are held by the employer if the employer fails to file a signed sworn affidavit with the county prosecutor within three business days after the order is issued.  All licenses that are suspended under this paragraph (3) shall remain suspended until the employer files a signed sworn affidavit with the county prosecutor.  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 paragraph (3), the licenses that are subject to suspension under this paragraph (3) 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 paragraph (3) 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 Attorney General and the Attorney General shall maintain the copy pursuant to section 5 of this act.

     (4)   May order the appropriate agencies to suspend all licenses described in paragraph (3) of this subsection that are held by the employer, not to exceed 10 business days.  The court shall base its decision to suspend under paragraph (4) on any evidence or information submitted to it during the action for a violation of this section and shall consider the following factors, if relevant:

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

     (b)   Any 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 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 deems appropriate.

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

     (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 prosecutor of each new employee who is hired by the employer at the specific location where the unauthorized alien performed work.

     (3)   Order the appropriate agencies to suspend all licenses, described in paragraph (3) of subsection a. of this section 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 (3) 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:

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

     (b)   Any 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 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 deems appropriate.

     (4)   Order the employer to file a signed sworn affidavit with the county prosecutor.  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 paragraph shall remain suspended beyond the minimum 10 days required in paragraph (3) of subsection b. of this section until the employer files a signed sworn affidavit with the county prosecutor. For the purposes of this paragraph, the licenses that are subject to suspension under this paragraph 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 Attorney General and the Attorney General shall maintain the copy pursuant to section 6 of this act.

     c.     For a second violation of section 2 of this act 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.

 

     5.    The Attorney General shall maintain copies of court orders that are received pursuant to section 4 of this act and shall maintain a database of the employers who have a first violation of subsection a. of section 2 of this act and make the court orders available on the Attorney General's website.

 

     6.    a.  In determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8U.S.C.s. 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 8U.S.C.s. 1373(c).

     b.    For the purposes of this section, proof of verifying the employment authorization of an employee through the basic pilot program creates a rebuttable presumption that an employer did not intentionally employ an unauthorized alien or knowingly employ an unauthorized alien.

     c.     For the purposes of this section, an employer who establishes that it has complied in good faith with the requirements of 8U.S.C.s. 1324b establishes an affirmative defense that the employer did not intentionally or knowingly employ an unauthorized alien.

 

     7.    This act shall not be construed to require an employer to take any action that the employer believes in good faith would violate federal or State law.

 

     8.    After December 31, 2008, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the basic pilot program.


     9.    This act shall take effect January 1, 2009.

 

 

STATEMENT

 

     This bill prohibits the employment of unauthorized aliens.  The bill imposes penalties on employers who knowingly or intentionally employ unauthorized aliens.  For the first violation where an employer knowing hired unauthorized aliens, a court shall order the employer to terminate such employment, to be subject to a three year probationary period during which the employer shall submit quarterly reports for each new hire, to file a sworn affidavit within three business days after the order has been issued or face the suspension of any business license held by the employer until such time a signed sworn affidavit is filed.  In addition, a court may consider a number of factors surrounding the violation and order the suspension of any business license for a period not to exceed ten business days.

     For the first violation where an employer intentionally hired unauthorized aliens, a court shall order the employer to terminate such employment; a five year probationary period during which the employer shall submit quarterly reports for each new hire; the suspension of any business license for a minimum ten days after considering all factors surrounding the violation; and the employer to file a sworn affidavit until which all licenses shall remain suspended.  For any second violation, a court shall order the permanent revocation of any and all of the employers’ business licenses issued by the State or any political subdivisions of the State.