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MISSISSIPPI LEGISLATURE
2008 Regular Session
To: Judiciary, Division A
By: Senator(s) Watson, McDaniel, Yancey

Senate Bill 2988

(As Sent to Governor)

AN ACT TO CREATE THE MISSISSIPPI EMPLOYMENT PROTECTION ACT; TO PROVIDE PROCEDURES FOR NEWLY HIRED EMPLOYEES AND THEIR EMPLOYERS; TO ENACT DEFINITIONS; TO REQUIRE EMPLOYEE VERIFICATION; TO PROVIDE EMPLOYER LIABILITY; TO SET UP EMPLOYER-EMPLOYEE PROGRAMS; TO MAKE PROVISIONS FOR THIRD-PARTY EMPLOYERS; TO DEFER TO FEDERAL LAW IN STATE LAW; TO ENACT EXEMPTIONS; TO DESIGNATE ENFORCEMENT DUTIES UNDER THE ACT; TO PROVIDE PENALTIES FOR VIOLATIONS OF THIS ACT; AND FOR RELATED PURPOSES.

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

     SECTION 1.  The Legislature finds that when illegal immigrants have been sheltered and harbored in this state and encouraged to reside in this state through the benefit of work without verifying immigration status, these practices impede and obstruct the enforcement of federal immigration law, undermine the security of our borders, and impermissibly restrict the privileges and immunities of the citizens of Mississippi.  The Legislature further finds that illegal immigration is encouraged when public agencies within this state provide public benefits without verifying immigration status.  The Legislature further finds that the Tenth Amendment to the United States Constitution reserves to the states those powers not delegated to the United States by the Constitution.  Therefore, the Legislature declares that it is a compelling public interest of this state to discourage illegal immigration by requiring all agencies within this state to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws.  The Legislature also finds that other measures are necessary to ensure the integrity of various governmental programs and services.

     SECTION 2.  (1)  This act shall be known as the "Mississippi Employment Protection Act."

     (2)  The provisions of this section shall be enforced without regard to race, gender, religion, ethnicity or national origin.

     (3)  For the purpose of this section only, the following words shall have the meanings ascribed herein unless the content clearly states otherwise:

          (a)  "Employer" is any person or business that is required by federal or state law to issue a United States Internal Revenue Service Form W-2 or Form 1099 to report income paid to employed or contracted personnel in Mississippi.

          (b)  "Employee" is any person or entity that is hired to perform work within the State of Mississippi and to whom a United States Internal Revenue Service Form W-2 or Form 1099 must be issued.

          (c)  "Third-party employer" is any person or company that provides workers for another person or company.  This includes, but is not limited to, leasing companies and contract employers.

          (d)  "Status verification system" means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Public Law 104-208, Division C, Section 403(a); 8 USC Section 1324a, and operated by the United States Department of Homeland Security, known as the E-Verify Program.

          (e)  "Unauthorized alien" means an alien as defined in Section 1324a(h)(3) of Title 8 of the United States Code.

          (f)  "Public employer" means every department, agency or instrumentality of the state or a political subdivision of the state.

          (g)  "Subcontractor" means a subcontractor, contract employee, staffing agency or any contractor regardless of its tier.

     (4)  (a)  Employers in the State of Mississippi shall only hire employees who are legal citizens of the United States of America or are legal aliens.  For purposes of this section, a legal alien is an individual who was lawfully present in the United States at the time of employment and for the duration of employment, or was permanently residing in the United States under color of law at the time of employment and for the duration of employment.

          (b)  (i)  Every employer shall register with and utilize the status verification system to verify the federal employment authorization status of all newly hired employees.

               (ii)  No contractor or subcontractor shall hire any employee unless the contractor or subcontractor registers and participates in the status verification system to verify the work eligibility status of all newly hired employees.

               (iii)  No contractor or subcontractor who enters into a contract with a public employer shall enter into such a contract or subcontract unless the contractor or subcontractor registers and participates in the status verification system to verify information of all newly hired employees.

          (c)  The provision of this section shall not apply to any contracts entered into on or before July 1, 2008.

          (d)  It shall be a discriminatory practice for an employer to discharge an employee working in Mississippi who is a United States citizen or permanent resident alien while retaining an employee who the employing entity knows, or reasonably should have known, is an unauthorized alien hired after July 1, 2008, and who is working in Mississippi in a job category that requires equal skill, effort and responsibility, and which is performed under similar working conditions, as defined by 29 USC, Section 206(d)(1), as the job category held by the discharged employee.

          (e)  An employing entity which, on the date of the discharge in question, was enrolled in and used the status verification system to verify the employment eligibility of its employees in Mississippi hired after July 1, 2008, shall be exempt from liability, investigation or suit arising from any action under this section.

          (f)  No cause of action for a violation of this section shall lie under any other Mississippi law but shall arise solely from the provisions of this section.

     (5)  Any employer that complies with the requirements of this section shall be held harmless by the Mississippi Department of Employment Security, provided the employer is not directly involved in the creation of any false documents, and provided that the employer did not knowingly and willfully accept false documents from the employee.

     (6)  (a)  All third-party employers that conduct business in Mississippi shall register to do business in Mississippi with the Mississippi Department of Employment Security before placing employees into the workforce in Mississippi.

          (b)  Third-party employers shall provide proof of registration and any participation in the status verification system to any Mississippi employer with whom they do business.

     (7)  (a)  State of Mississippi agencies and political subdivisions, public contractors and public subcontractors and private employers with two hundred fifty (250) or more employees shall meet verification requirements not later than July 1, 2008.

          (b)  Employers with at least one hundred (100) but less than two hundred fifty (250) employees shall meet verification requirements not later than July 1, 2009.

          (c)  Employers with at least thirty (30) but less than one hundred (100) employees shall meet verification requirements not later than July 1, 2010.

          (d)  All employers shall meet verification requirements not later than July 1, 2011.

          (e)  (i)  Any employer violating the provisions of this section shall be subject to the cancellation of any state or public contract, resulting in ineligibility for any state or public contract for up to three (3) years, the loss of any license, permit, certificate or other document granted to the employer by any agency, department or government entity in the State of Mississippi for the right to do business in Mississippi for up to one (1) year, or both.

               (ii)  The contractor or employer shall be liable for any additional costs incurred by the agencies and institutions of the State of Mississippi, or any of its political subdivisions, because of the cancellation of the contract or the loss of any license or permit to do business in the state.

               (iii)  Any person or entity penalized under this section shall have the right to appeal to the appropriate entity bringing charges or to the circuit court of competent jurisdiction.

          (f)  The Department of Employment Security, State Tax commission, Secretary of State, Department of Human Services and the Attorney General shall have the authority to seek penalties under this section and to bring charges for noncompliance against any employer or employee.

     (8)  (a)  There shall be no liability under this section in the following circumstances:

               (i)  An employer who hires an employee through a state or federal work program that requires verification of the employee's social security number and provides for verification of the employee's lawful presence in the United States in an employment-authorized immigration status;

               (ii)  Any candidate for employment referred by the Mississippi Department of Employment Security, if the Mississippi Department of Employment Security has verified the social security number and provides for verification of the candidate's lawful presence in the United States in an employment-authorized immigration status; or

               (iii)  Individual homeowners who hire workers on their private property for noncommercial purposes, unless required by federal law to do so.

          (b)  (i)  Compliance with the sections of this statute shall not exempt the employer from regulations and requirements related to any federal laws or procedures related to employers.

               (ii)  This section shall not be construed as an attempt to preempt federal law.

          (c)  (i)  It shall be a felony for any person to accept or perform employment for compensation knowing or in reckless disregard that the person is an unauthorized alien with respect to employment during the period which the unauthorized employment occurred.  Upon conviction, a violator shall be subject to imprisonment in the custody of the Department of Corrections for not less than one (1) year nor more than five (5) years, a fine of not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00), or both.

               (ii)  For purposes of determining bail for persons who are charged under this section, it shall be a rebuttable presumption that a defendant who has entered and remains in the United States unlawfully is deemed at risk of flight for purposes of bail determination.

     SECTION 3.  This act shall take effect and be in force from and after July 1, 2008, for all state agencies, departments, and political subdivisions, all employers who have contracts with the State of Mississippi, or with its departments, agencies, political subdivisions, all third-party employers, and any person or company using a third-party employer.

     This act shall take effect and be in force from and after January 1, 2009, for all other employers who do business in Mississippi.