Report Title:

Unauthorized Aliens; Employment

 

Description:

Prohibits employers from hiring unauthorized aliens, as defined in federal law, and establishes a mechanism for handling complaints and conducting investigations, and penalties for violation of the prohibition.

 


THE SENATE

S.B. NO.

1067

TWENTY-FIFTH LEGISLATURE, 2009

 

STATE OF HAWAII

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO EMPLOYMENT.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature recognizes that while the majority of contractors and developers in Hawaii conduct business in a legal, ethical, safe, and conscientious manner, unfortunately, there are some in our community who flaunt local rules and hiring practices and violate our laws and island values. These unscrupulous contractors engage in illegal hiring practices, fail to adhere to safety codes, and play fast and loose in other ways to increase their profits at the expense of Hawaii's skilled workers and consumers. These practices help these contractors gain an unfair competitive advantage over reputable, law-abiding companies and contribute to an underpaid, under-trained workforce.

Recent reports regarding the arrest and prosecution of unauthorized aliens working in the State of Hawaii in the agricultural and service industries indicate that the problem may be growing.

The legislature finds that Hawaii needs to preserve fair labor practices and quality construction standards in Hawaii by holding persons who engage in illegal hiring practices accountable. The purpose of this Act is to prohibit employers from hiring unauthorized aliens.

SECTION 2. Chapter 371, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"371‑   Employment of unauthorized aliens prohibited. (a) An employer shall not employ an unauthorized alien for any length of time or under any circumstance.

(b) Upon receipt by the department of an allegation of the employment of an unauthorized alien by an employer or upon the department's own initiative, the department shall forthwith notify the state attorney general and the United States Immigration and Customs Enforcement of the suspected employment of an unauthorized alien. The department or the state attorney general, or both, shall conduct an appropriate investigation accordingly, with or without assistance of the United States Immigration and Customs Enforcement, and shall undertake appropriate enforcement actions, including but not limited to, initiating action to suspend the professional or vocational license of the employer under chapter 436B and to levy an administrative fine of $           for each day of the violation; provided that employer penalties as provided in title 8 United States Code section 1324a(e)(4)(A), shall take precedence with regard to fines if a federal enforcement is conducted.

(c) Pursuant to the investigation under subsection (b), an unauthorized alien in the employment of the employer shall be:

(1) Terminated from employment by operation of law;

(2) Taken into custody if appropriate and referred for further proceedings to the appropriate federal authorities; and

(3) Subject to prosecution for the offense of identity theft in the third degree under section 708-839.8.

(d) For purposes of this section:

"Employer" means a person who engages the services of an employee, and includes any person acting on behalf of an employer, but shall not include the State or any political subdivision thereof, or any labor organization or anyone acting in behalf of the labor organization other than when it is acting as an employer in fact. The term "employer" includes, but is not limited to, construction contractors and employers engaged in agriculture.

"Employ an unauthorized alien" means to hire, recruit, or refer for a fee, for employment in this State an alien.

"Unauthorized alien" means an alien who does not have the legal right or authorization under federal law to work in the United States, as provided in title 8 United States Code section 1324a(h)(3)."

SECTION 3. Section 436B-19, Hawaii Revised Statutes, is amended to read as follows:

"436B-19 Grounds for refusal to renew, reinstate or restore and for revocation, suspension, denial, or condition of licenses. In addition to any other acts or conditions provided by law, the licensing authority may refuse to renew, reinstate or restore, or may deny, revoke, suspend, or condition in any manner, any license for any one or more of the following acts or conditions on the part of the licensee or the applicant thereof:

(1) Failure to meet or maintain the conditions and requirements necessary to qualify for the granting of a license;

(2) Engaging in false, fraudulent, or deceptive advertising, or making untruthful or improbable statements;

(3) Being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, opium, or cocaine, or other drugs or derivatives of a similar nature;

(4) Practicing the licensed profession or vocation while impaired by alcohol, drugs, physical disability, or mental instability;

(5) Procuring a license through fraud, misrepresentation, or deceit;

(6) Aiding and abetting an unlicensed person to directly or indirectly perform activities requiring a license;

(7) Professional misconduct, incompetence, gross negligence, or manifest incapacity in the practice of the licensed profession or vocation;

(8) Failure to maintain a record or history of competency, trustworthiness, fair dealing, and financial integrity;

(9) Conduct or practice contrary to recognized standards of ethics for the licensed profession or vocation;

(10) Violating any condition or limitation upon which a conditional or temporary license was issued;

(11) Engaging in business under a past or present license issued pursuant to the licensing laws, in a manner causing injury to one or more members of the public;

(12) Failure to comply, observe, or adhere to any law in a manner such that the licensing authority deems the applicant or holder to be an unfit or improper person to hold a license;

(13) Revocation, suspension, or other disciplinary action by another state or federal agency against a licensee or applicant for any reason provided by the licensing laws or this section;

(14) Criminal conviction, whether by nolo contendere or otherwise, of a penal crime directly related to the qualifications, functions, or duties of the licensed profession or vocation;

(15) Failure to report in writing to the licensing authority any disciplinary decision issued against the licensee or the applicant in another jurisdiction within thirty days of the disciplinary decision;

(16) Employing, utilizing, or attempting to employ or utilize at any time any person [not]:

(A) Not licensed under the licensing laws where licensure is required; or

(B) Who is an unauthorized alien, as defined in section 371‑  ; or

(17) Violating this chapter, the applicable licensing laws, or any rule or order of the licensing authority."

SECTION 4. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

 

INTRODUCED BY:

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