Require certain construction industry employers to use E-verify

(136th General Assembly)

(Substitute
House Bill Number 246)

AN
ACT

To enact sections 4151.01,
4151.02, 4151.03, 4151.04, 4151.05, 4151.06, and 4151.07 of the
Revised Code to enact the E-Verify Workforce Integrity Act requiring
certain construction industry employers to use E-verify and to
sanction specified hiring practices in the industry.

Be
it enacted by the General Assembly of the State of Ohio:

Section
1.
That
sections 4151.01, 4151.02, 4151.03, 4151.04, 4151.05, 4151.06, and
4151.07 of the Revised Code be enacted to read as follows:

Sec.
4151.01.

As used in this chapter:

(A)
"Alien" means an individual who is not a United States
citizen or a United States national.

(B)
"Business day" means a day of the week excluding Saturday,
Sunday, and a legal holiday as defined under section 1.14 of the
Revised Code.

(C)
"Employee" means any individual who performs services for a
contractor, subcontractor, or labor broker who satisfies both of the
following conditions:

(1)
The individual is subject to the contractor's, subcontractor's, or
labor broker's direction and control, not only as to the result
accomplished but also as to the details of how the work is performed;

(2)
The individual receives compensation in the form of wages, salary, or
any other form of remuneration in exchange for services rendered.

(D)
"E-verify" means the employment verification program as
jointly administered by the United States department of homeland
security and the social security administration under section
101(a)(1) of the federal "Immigration Reform and Control Act of
1986," 8 U.S.C. 1324a, or any of its successor programs.

(E)(1)
"Labor broker" means any individual or entity who hires an
employee and supplies the employee's labor to a nonresidential
construction contractor or a subcontractor, regardless of tier,
through the use of a contract.

(2)
"Labor broker" does not include any governmental entity or
labor organization as defined in section 3517.01 of the Revised Code.

(F)
"Nonresidential construction contractor" means any
individual or entity that has responsibility for the means, method,
and manner of construction, improvement, renovation, or repair on a
nonresidential construction project with respect to one or more
trades and who offers, identifies, advertises, or otherwise holds out
or represents that the individual or entity is permitted or qualified
to perform or have responsibility for the means, method, and manner
of construction, improvement, renovation, repair, or maintenance with
respect to one or more trades on a nonresidential construction
project.

(G)
"Nonresidential construction project" means the
construction or renovation of any building, highway, bridge, utility,
or related infrastructure, but does not include any of the following:

(1)
An industrialized unit, manufactured home, or a residential building
as defined in section 3781.06 of the Revised Code;

(2)
A building or structure that is incidental to the use of the land on
which the building or structure is located for agricultural purposes
as defined in section 3781.06 of the Revised Code;

(3)
A mobile home as defined in section 4501.01 of the Revised Code.

(H)
"Subcontractor" means any individual or entity who enters
into a contract with a nonresidential construction contractor or
another subcontractor, regardless of tier, to perform work on a
nonresidential construction project.

(I)
"Unauthorized alien" means an alien who is not authorized
to be employed as determined in accordance with the federal
"Immigration Reform and Control Act of 1986," 8 U.S.C.
1324a.

Sec.
4151.02.
(A)
Except as provided in division (C) of this section, no nonresidential
construction contractor, subcontractor, or labor broker shall fail to
verify the employment eligibility of each employee hired to perform
work on a nonresidential construction project through the e-verify
program. A nonresidential construction contractor shall use e-verify
to confirm the identity and legal working status of each employee
employed by the nonresidential construction contractor. A
subcontractor shall use e-verify to confirm the identity and legal
working status of each employee employed by the subcontractor. A
labor broker shall use e-verify to confirm the identity and legal
working status of each employee employed by the labor broker.

(B)
A nonresidential construction contractor, subcontractor, or labor
broker shall keep a record of the verification required by division
(A) of this section for three years after the date of hire or one
year after the date the employee's employment is terminated,
whichever is later.

(C)
A nonresidential construction contractor, subcontractor, or labor
broker is not required to comply with division (A) of this section if
both of the following apply:

(1)
The nonresidential construction contractor, subcontractor, or labor
broker has previously verified an employee's employment eligibility
using e-verify.

(2)
The employer is not required to verify or reverify the employee's
eligibility to work under section 101(a)(1) of the federal
"Immigration Reform and Control Act of 1986," 8 U.S.C.
1324a(b).

Sec.
4151.03.
No
nonresidential construction contractor, subcontractor, or labor
broker shall continue to employ an individual after receiving a
notice of final nonconfirmation for that individual from the e-verify
program. For purposes of this section, a final nonconfirmation occurs
when the contractor, subcontractor, or labor broker receives a case
result indicating that an employee's employment eligibility could not
be confirmed and instructions that the contractor, subcontractor, or
labor broker should close the e-verify case associated with the
employee.

Sec.
4151.04.
(A)(1)
The attorney general shall prescribe a complaint form for an
individual to allege a violation of section 4151.02 or 4151.03 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 form notarized. A complainant shall submit the
complaint to the attorney general. Except as provided in division (B)
of this section, the attorney general shall investigate any violation
alleged in a prescribed complaint form when the attorney general
determines the complaint contains sufficient facts to reasonably
conclude that a violation may have occurred.

(2)
This section does not prohibit an individual from filing an anonymous
complaint on a form other than the prescribed complaint form. Except
as provided in division (B) of this section, the attorney general
may, but is not required to, investigate a violation alleged in a
form other than a prescribed form, provided the complaint contains
sufficient facts to reasonably conclude that a violation may have
occurred.

(B)
The attorney general shall not investigate a complaint that is based
solely on race, color, or national origin.

(C)
Any local law enforcement officer may assist in investigating a
complaint filed under this section.

(D)
Except as provided in division (I) of this section, if the attorney
general conducts an investigation under this section and determines
that reasonable evidence exists that a violation of section 4151.02
or 4151.03 of the Revised Code has occurred, the attorney general
shallissue a notice of violation that does all of the following:

(1)
Directs the contractor, subcontractor, or labor broker to provide
satisfactory proof to the attorney general not later than ten days
after the notice is issued that individuals employed by the
contractor, subcontractor, or labor broker are authorized to be
employed under the federal "Immigration Reform and Control Act
of 1986," 8 U.S.C. 1324a;

(2)
Specifies any penalty assessed under division (E) of this section
based on the attorney general's determination;

(3)
If the attorney general determined it is likely the contractor,
subcontractor, or labor broker committed two or more willful
violations of section 4151.02 or 4151.03 of the Revised Code, informs
the contractor, subcontractor, or labor broker that the contractor,
subcontractor, or labor broker is disqualified from bidding on or
participating in any future state contract for a period not to exceed
two years;

(4)
Notifies the contractor, subcontractor, or labor broker of the
contractor's, subcontractor's, or labor broker's right to request a
hearing described in division (F) of this section.

(E)(1)
Except as otherwise provided in this division, if the attorney
general's investigation reveals one or more violations of section
4151.02 of the Revised Code, the attorney general shall assess a fine
of two hundred fifty dollars for each violation against the
contractor, subcontractor, or labor broker. Except as otherwise
provided in this division, if the attorney general's investigation
reveals one or more violations of section 4151.03 of the Revised
Code, the attorney general shall assess a fine of five thousand
dollars for each violation against the contractor, subcontractor, or
labor broker.

(2)
Except as otherwise provided in this division, if the attorney
general's investigation reveals one or more violations of 4151.02 of
the Revised Code and the contractor, subcontractor, or labor broker
has been ordered by the attorney general or a court to pay a fine
under division (E)(1) of this section during the preceding three
years, the attorney general shall assess a fine of one thousand
dollars for each violation against the contractor, subcontractor, or
labor broker. Except as provided in this division, if the attorney
general's investigation reveals one or more violations of section
4151.03 of the Revised Code and the contractor, subcontractor, or
labor broker has been ordered by the attorney general or a court to
pay a fine under division (E)(1) of this section during the preceding
three years, the attorney general shall assess a fine of ten thousand
dollars per violation against the contractor, subcontractor, or labor
broker.

(3)
If the attorney general's investigation reveals one or more
violations of section 4151.02 of the Revised Code and the contractor,
subcontractor, or labor broker has been ordered by the attorney
general or a court to pay a fine under division (E)(2) of this
section during the preceding three years, the attorney general shall
assess a fine of one thousand five hundred dollars per violation
against the contractor, subcontractor, or labor broker. If the
attorney general's investigation reveals one or more violations of
section 4151.03 of the Revised Code and the contractor,
subcontractor, or labor broker has been ordered by the attorney
general or a court to pay a fine under division (E)(2) of this
section during the preceding three years, the attorney general shall
assess a fine of twenty-five thousand dollars for each violation
against the contractor, subcontractor, or labor broker.

(F)
Notwithstanding the thirty-day period to request a hearing described
in section 119.07 of the Revised Code, a contractor, subcontractor,
or labor broker may request an adjudicatory hearing not more than ten
business days after being served a notice of violation under division
(D) of this section. A contractor, subcontractor, or labor broker
shall send the request to the attorney general, who shall forward the
request to the director of commerce. The director, or the director's
designee, shall conduct a hearing under this division. Except as
provided in this division, the director or designee shall comply with
Chapter 119. of the Revised Code. A determination made by the
director or the director's designee is a final order that may be
appealed under section 119.12 of the Revised Code.

If
a contractor, subcontractor, or labor broker fails to request a
hearing within the time specified in this division, a notice of
violation issued under division (D) of this section becomes an
enforceable order against the contractor, subcontractor, or labor
broker.

(G)(1)
If a notice of violation that includes a disqualification described
in division (D)(3) of this section becomes an enforceable order under
division (F) of this section, the attorney general shall provide a
copy of the order to the director of administrative services. The
director shall add the contractor, subcontractor, or labor broker to
the list maintained by the director under division (C)(1) of section
4151.05 of the Revised Code.

Except
as provided in division (G)(2) of this section, after the period of
disqualification in the order ends, the contractor, subcontractor, or
labor broker may be eligible to bid for and participate in state
contracts if the contractor, subcontractor, or labor broker files a
sworn affidavit with the director of administrative services stating
that the period of disqualification has ended and that the
contractor, subcontractor, or labor broker has not violated section
4151.02 or 4151.03 of the Revised Code during the period of
disqualification.

(2)
The director shall not remove a contractor, subcontractor, or labor
broker from the list maintained under division (C)(1) of section
4151.05 of the Revised Code if the contractor, subcontractor, or
labor broker has not paid a fine assessed under this section.

(H)
If a contractor, subcontractor, or labor broker fails to comply with
an order that has become enforceable under division (F) of this
section within thirty days after the order is enforceable, the
attorney general shall bring a civil action against the contractor,
subcontractor, or labor broker in accordance with section 4151.05 of
the Revised Code. In the action, the attorney general also may
present evidence that the contractor, subcontractor, or labor broker
violated section 4151.06 of the Revised Code.

(I)
The attorney general shall not issue a notice of violation under this
section or bring a civil action under section 4151.06 of the Revised
Code if a violation of section 4151.02 or 4151.03 of the Revised Code
was the result of an isolated technical error or a malfunction in the
e-verify program.

Sec.
4151.05.
(A)
If a contractor, subcontractor, or labor broker fails to comply with
an order that has become enforceable against the contractor,
subcontractor, or labor broker under division (F) of section 4151.04
of the Revised Code, the attorney general shall bring a civil action
against the contractor, subcontractor, or labor broker in the court
of common pleas of the county where the contractor, subcontractor, or
labor broker is located or does business or in the court of common
pleas of the county where the violation is alleged to have occurred.

(B)(1)
If the court determines that a contractor, subcontractor, or labor
broker violated section 4151.02 or 4151.03 of the Revised Code, the
court shall do both of the following:

(a)
Order the contractor, subcontractor, or labor broker to pay any
portion of the penalty imposed by the attorney general that the court
determines to have been validly imposed based on the evidence
presented plus an additional one thousand dollars for each violation;

(b)
Order that the contractor, subcontractor, or labor broker is not
eligible to bid for or participate in any future state contract for a
period of up to two years.

(2)
The court shall provide a copy of an order issued under division
(B)(1) of this section to the director of administrative services.

(3)
After the period of disqualification described in division (B)(1)(b)
of this section has elapsed, a contractor, subcontractor, or labor
broker that has been ordered ineligible may be eligible to bid for
and participate in state contracts if the contractor, subcontractor,
or labor broker files a sworn affidavit with the director that the
period of disqualification has elapsed and that the contractor,
subcontractor, or labor broker has not violated section 4151.02 or
4151.03 of the Revised Code during that period.

(C)(1)
The director shall maintain a list of all contractors,
subcontractors, and labor brokers ineligible to bid for or
participate in any state contract for a period of two years under
division (B)(1)(b) of this section. Except as provided in division
(C)(2) of this section, the director shall remove a contractor,
subcontractor, or labor broker from the list when the two-year period
ends. The director also shall maintain a record of all affidavits
filed with the director under division (B)(3) of this section.

(2)
The director shall not remove a contractor, subcontractor, or labor
broker from the list maintained under division (C)(1) of this section
if the contractor, subcontractor, or labor broker has not paid a fine
ordered under this section.

(D)
The e-verify enforcement fund is created in the state treasury. Fines
collected pursuant to this chapter shall be deposited to the credit
of the fund. The attorney general shall use the fund to administer
and enforce this chapter.

Sec.
4151.06.
(A)
If a court, pursuant to an action brought under section 4151.05 of
the Revised Code, determines that a nonresidential construction
contractor, subcontractor, or labor broker has knowingly employed an
unauthorized alien, the court shall order each appropriate agency to
permanently revoke any license issued by the agency and held by the
nonresidential construction contractor, subcontractor, or labor
broker specific to the business location where the unauthorized alien
performed work. If the nonresidential construction contractor,
subcontractor, or labor broker does not hold a license specific to
the business location where the unauthorized alien performed work,
but a license is necessary to operate the nonresidential construction
contractor's, subcontractor's, or labor broker's business in general,
the court shall order the appropriate agency to permanently revoke
all licenses issued by that agency that are held by the
nonresidential construction contractor, subcontractor, or labor
broker at the nonresidential construction contractor's,
subcontractor's, or labor broker's primary place of business. On
receipt of the order and notwithstanding any other law to the
contrary, the appropriate agency immediately shall revoke the
licenses.

(B)
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," 8 U.S.C. 1373(c). 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," 8 U.S.C.
1373(c).

Sec.
4151.07.
(A)
No state agency shall fail to include in a contract for the
construction or renovation of a nonresidential construction project
provisions requiring compliance with sections 4151.02 and 4151.03 of
the Revised Code.

(B)
The attorney general shall conduct periodic reviews of state agencies
to ensure that state agencies are including within their contracts
for the construction or renovation of nonresidential construction
projects provisions that comply with division (A) of this section.

(C)
The attorney general shall notify a state agency and the director of
administrative services of any contract for the construction or
renovation of a nonresidential construction project the attorney
general determines violates division (A) of this section. In the
notice, the attorney general shall inform the state agency and the
director of the state agency's duty under division (A) of this
section.

(D)
Each state agency found in violation of division (A) of this section
shall, for one year after the attorney general provides the notice
required under division (C) of this section, submit any contract for
the construction or renovation of a nonresidential construction
project to the director of administrative services. The director
shall promptly review the proposed contract and determine whether the
state agency complied with division (A) of this section. The director
shall notify the agency of the director's determination and, in the
event the proposed contract does not contain the required provisions,
instruct the state agency to include the provisions in a revised
draft of the proposed contract.

Section
2.
This
act shall be known as the E-Verify Workforce Integrity Act.

Speaker
___________________ of the House of Representatives.

President
___________________ of the Senate.

Passed
________________________, 20____

Approved
________________________, 20____

Governor.

The section numbering of law
of a general and permanent nature is complete and in conformity with
the Revised Code.

Director, Legislative
Service Commission.

Filed
in the office of the Secretary of State at Columbus, Ohio, on the
____ day of ___________, A. D. 20____.

Secretary of State.

File
No. _________ Effective Date ___________________