PROPOSED MODEL
STATE LEGISLATION*
(Change "STATE" to your
state.)
September 1, 2005
Fair & Legally Eligible Employment Act of 2005
Long Title: A Bill to Promote Public Safety, Economic
Fairness, and Non-Discriminatory Employment Practices by Assisting Employers
in the Use of the Federal Web Basic Pilot Program, Administered under the
Department of Homeland Security's Systematic Alien Verification for
Entitlements program.
Summary:
The Fair and Legally Eligible Employment Act (FLEE) makes it
easier for employers to take advantage of the voluntary employability
verification technology the federal government has made available under the
Department of Homeland Security's Web Basic Pilot (BP) program, which is
administered by the Systematic Alien Verification for Entitlements (SAVE)
Program.
By adopting federal employability standards, FLEE promotes
economic fairness, helps safeguard workers against unlawful discrimination, and
provides legal protections to employers.
By easing the process of utilizing the service, the state
encourages employers to comply with relevant hiring and tax laws and reduces
the paperwork load on businesses.
Section 1:
(a) This bill shall establish in state
the “Fair & Legally Eligible Employment Act” (FLEE).
(b) FLEE authorizes the state to act as the Designated Agent
through which employers in STATE may take
advantage of the federal Web Basic Pilot (BP) program.
(c) FLEE assigns the role of Program Administrator to the
Director of the STATE Department of
AGENCY.
Section 2: Definitions
(a) As used in this act,
(1) Web Basic Pilot program means the program created under
section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), authorized by the Basic Pilot Program Extension and
Expansion Act of 2003 (Pub. Law 108-156), and administered by the U.S.
Citizenship and Immigration Service (USCIS)'s Systematic Alien Verification
for Entitlements (SAVE) Program.
(2) Designated Agent means the State of
STATE, which acts in compliance with established
USCIS guidelines on behalf of those employers in the state choosing to
participate in the federal BP program.
(3) Program Adminstrator means the Director of
the STATE Department of
AGENCY, who shall designate such other personnel, users, and
administrators as may be necessary to enable the State to fulfill, with the
highest possible level of service to the employers and the people of the
State, the function of Designated Agent.
(4) Memorandum of Understanding (MOU) means a
signed agreement between the relevant parties that sets forth the
responsibilities of the Designated Agent, the USCIS and the Social Security
Administration (SSA) in accordance with USCIS rules.
(5) Relief Memorandum of Understanding (RMOU)
means a signed agreement between an employer electing to participate in the
FLEE program, the State acting as its Designated Agent, the USCIS, and the SSA
setting forth the responsibilities of all parties.
Section 3: General Provisions
3.1 State Government as
Employer
(a) All agencies of the state of
STATE are herewith required to participate in the
FLEE program.
(b) The Department of
AGENCY shall act as the Program Administrator for the Designated Agent
and for all agencies described in the preceding subsection.
(c) No agency of the state may contract for services from
private firms, or hire private enterprises, that does not prove within 30
calendar days of the enactment of this act full participation in the FLEE
program.
3.2 Assistance to Private Employers
(a) Business License Applicants
(1) Any employer applying for a license to do
business in the State of STATE after the
effective date established in §7(a) of this Act shall be considered to have
given its consent to have the STATE Department of
AGENCY enroll the employer in the federal BP
program and act as its Designated Agent to conduct employee verification
activities on its behalf.
(2) A business license applicant described in
subsection (1) may choose not to participate in the BP program by indicating
its desire to opt out of the program in its business license application, a
space for such option to be indicated on the business license application form
with a clear and concise explanation of the program's components and
emphasizing the program's benefits.
(b) Current Employers
(1) Any employer already licensed to do
business in STATE NAME may choose to have the
Department of AGENCY enroll the employer in the
federal BP program and act as its Designated Agent to conduct employee
verification activities on its behalf. The Department of
AGENCY shall be required to notify all presently licensed employers at
the time of enactment of this Act of the availability of the program by
sending such employers notification by mail no later than 30 calendar days
after the effective date as provided for in §7(a).
(2) A second mailing shall be sent within 60 days of the
postage date of the notification mailing in §3.2(b)(1) (See at FILE, < http://www.fileus.org/library/laws/FLEE.php#3.2"
>) to
all employers not responding to the initial mailing within 30 days.
(3) Thereafter, non-participating employers shall be
notified of the availability of the FLEE service, which shall be accompanied
by a clear and concise definition of the program,
(A) at least once semi-annually
(B) via insert in already an scheduled mailing, or, in the
event no regularly scheduled mailing is executed, by post card, presorted bulk
mail.
(c) Termination
(1) Any private employer choosing to
participate in the FLEE program may, at any time, terminate its participation
in the program by indicating such on a signed written form, submitted to the
Program Administrator, that it no longer wishes to participate in the program.
(2) A private employer shall be considered a non-participant
in the FLEE program if the employer has made no attempt to verify the
employment eligibility of a new hire within 10 business days from the starting
date of the new hire, the termination date to be the starting date.
3.3 Program Administration
The Program Administrator shall
(a) register each state government employer and
participating private employer in the federal BP program;
(b) act as a Designated Agent for each state government
employer and participating private employer;
(c) advise each employer of its responsibilities under the
Program, including:
(1) All Form I-9 requirements and other federal procedural
requirements of the BP program;
(2) Time limitations and deadlines associated with the BP
program;
(3) Limitations and prohibitions on verification of
employees under the BP program;
(4) Any such regulations as may be promulgated from time to
time by Congress or other controlling federal authority;
(d) make available online or by telephone order a
termination form on which the legal consequences of termination are explained
and which
(1) requires a physical signature.
(2) goes into effect upon receipt by the Dept of
agency
(3) when completed, made a part of the permanent state
archives and searchable by the general public online.
(e) create, with an emphasis on clarity and brevity, a free
weekly opt-in email digest for employers, and available to the general public,
containing
(1) information concerning employment law and issues
pertaining to the Form I-9 policy and procedures as released by the Public
Affairs Office of the USCIS,
(2) information contained in the "Employer Bulletins"
issued by the Office of Business Liaison, the USCIS office responsible for
publishing information valuable to employers,
(3) citations and links to original source of information,
(4) information pertinent to the purpose of this Act that,
in the judgment of the program administrator, may be useful to employers.
(e) Establish procedures to monitor, investigate, and
prosecute clear violations of federal and state anti-discrimination laws; take
proactive measures to prevent activity inconsistent with the BP program, or
with the provisions of this Act;
(f) Make such regulations as necessary to discharge its
responsibilities under this section.
Section 3.4: Public Notice
(a) Any employer electing to take part in the FLEE program
shall display in a prominent place clearly visible to prospective employees
Basic Pilot Notices as determined by the Department of Homeland Security.
(b) Upon an employer's enrollment in the FLEE program, the
Program Administrator shall mail the enrollee four decals indicating
participation in the program carrying words and insignia congruent with
national standards and usage and including the words "Active Participant |
Fair and Legally Eligible Employment Program | State
Dept of Agency" which the employer may post in a
manner of its choosing.
(1) Any employer that terminates its participation in the
program under §3.2(c)(1) must remove immediately, and may not display
thenceforth, the state FLEE decal.
(2) Any employer deemed terminated under §3.2(c)(2) may not
display the state FLEE decal.
(3) Any employer
Section 3.5: Liability Protection
(a) No employer or representative of any employer
participating in the FLEE program shall be civilly or criminally liable under
any law for the good faith discharge of an individual following final
confirmation that the individual is not work authorized.
(b) No employer participating in the FLEE program shall be
civilly liable for knowingly creating a public or private nuisance, or for
knowingly creating dangerous or unsafe conditions, when such liability rests
substantially on the employment of an individual determined to be ineligible
for employment.
(c) In the event of an investigation into its hiring
practices, an active FLEE participating employer will receive from the state a
presumption of innocence regarding relevant state law congruent with the
presumption of non-violation of sanctions laws granted by the DHS in the
particular instance.
Section 3.6: Funding
(a) Any costs incurred by the State in the funding of the
FLEE program shall be
(1) weighed against any increase in State revenue that may
be attributable to FLEE due to a reduction in the "off the books" economy;
(2) in the event costs exceed gains notwithstanding
§6(a)(1), the costs shall be offset by a corresponding increase in the fee for
obtaining a business license, to be determined by the agency issuing such
licenses.
Section 3.7: Effective Dates
(a) This Act shall take effect on
effective date and shall remain in effect until the scheduled end of
the BP program, November, 2008, or unless deauthorized by an act of the state
legislature.
(b) In the event the federal BP program is extended beyond
November, 2008, the provisions of this Act shall likewise be extended and
remain in effect without interruption.
(c) A review of the program to determine whether there are
identifiable steps available to make it a more valuable tool for the state's
employers, or make it more beneficial to the general public, or whether the
program is, in fact, a valuable tool for the state's employers, and/or a
benefit to the general public, or, in the event the federal BP program ends
without extension in November, 2008, whether components of the program may be
salvaged and continued under a new program that would serve the goals
expressed in this subsection, may be undertaken
(1) by the office of the Governor of the State,
(2) whose office shall conduct the review in a manner of its
choosing, and at the expense of General Funds
(3) upon written request on or before the first day of May,
2008, for such a review from
(A) the Program Administrator, or
(B) any member of the state legislature
(4) the findings of which review shall be presented to the
legislature, copies disseminated simultaneously to
(A) each state legislator, within the first week of the next
new legislative session occurring after the submission of the request for
review
(B) the state delegation to the
Congress of the United States
(C) the Secretary of the Department of Homeland Security and
the Director of the Bureau of Citizenship and Immigration Service
MFS note:
Excerpts from the U.S. legal code referring to hiring illegal aliens is
available here.
______
Used with permission of FILE, Friends of Immigration Law Enforcement.
*
Friends of Immigration Law Enforcement.
Washington, DC 20003.
See original at < http://www.fileus.org/library/laws/FLEE.php >.
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