By: Davis of Dallas H.B. No. 3240
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to requiring employers to participate in the federal
  E-Verify program and of the Texas Workforce Commission in regard to
  the E-Verify program; outlining certain duties of employers
  participation and providing civil penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle B, Title 2, Labor Code, is amended by
  adding Chapter 53 to read as follows:
  CHAPTER 53.  VERIFICATION OF WORK AUTHORIZATION STATUS
  SUBCHAPTER A.  GENERAL PROVISIONS
         Sec. 53.001.  DEFINITIONS.  In this chapter:
               (1)  "Commission" means the Texas Workforce
  Commission.
               (2)  "Employee" has the meaning assigned by Section
  21.002.
               (3)  "Employer" has the meaning assigned by Section
  21.002.
               (4)  "E-Verify program" means the electronic
  verification of work authorization program of the federal Illegal
  Immigration Reform and Immigrant Responsibility Act of 1996 (Pub.
  L. No. 104-208, reprinted in note, 8 U.S.C. Section 1324a),
  operated by the United States Department of Homeland Security, or a
  successor work authorization program designated by the United
  States Department of Homeland Security or other federal agency
  authorized to verify the work authorization status of newly hired
  employees under the federal Immigration Reform and Control Act of
  1986 (8 U.S.C. Section 1101 et seq.).
               (5)  "Governmental entity" means:
                     (A)  the state; or
                     (B)  a political subdivision of the state,
  including a municipality, a county, or any kind of district.
               (6)  "License" means a license, certificate,
  registration, permit, or other authorization that:
                     (A)  is issued by a licensing authority;
                     (B)  is subject before expiration to renewal,
  suspension, revocation, forfeiture, or termination by a
  governmental entity that issues or renews a license; and
                     (C)  is required for a person to practice or
  engage in a particular business, occupation, or profession.
         Sec. 53.002.  RULES.  The commission shall adopt rules and
  prescribe forms to implement this chapter.  The commission shall
  publish the proposed and adopted rules on the commission's website
  and in the Texas Register.
  [Sections 53.003-53.050 reserved for expansion]
  SUBCHAPTER B.  DUTIES REGARDING E-VERIFY PROGRAM
         Sec. 53.051.  COMMISSION DUTIES.  The commission shall post
  in a prominent location on its website information or links to
  information from the United States Government Accountability
  Office or a similar reliable source independent of the United
  States Department of Homeland Security selected by the commission
  regarding:
               (1)  the accuracy of the E-Verify program database;
               (2)  the approximate financial burden and expenditure
  of time that using the E-Verify program imposes on an employer; and
               (3)  an overview of an employer's duties under federal
  and state law regarding using the E-Verify program.
         Sec 53.052  VERIFICATION
         An employer shall register and participate in the E-Verify
  program to verify information of all new employees.
         Sec. 53.053.  DUTIES OF EMPLOYER PARTICIPATING IN E-VERIFY
  PROGRAM; VIOLATION.  (a)  Before enrolling in the E-Verify program,
  an employer is urged to consult the commission's website to review
  current information on an employer's legal duties in regard to
  participating in the program.
         (b)  On initial enrollment in the E-Verify program, or within
  30 days for an employer who enrolled in the program before September
  1, 2011, the effective date of this Act, the employer must attest
  under penalty of perjury, in the manner and on a form prescribed by
  the commission and accessible on the commission's website, that:
               (1)  the employer:
                     (A)  has received the E-Verify program training
  materials from the United States Department of Homeland Security;
  and
                     (B)  has posted in a prominent location in the
  employer's workplace visible to both prospective and current
  employees of the employer:
                           (i)  a notice from the United States
  Department of Homeland Security indicating that the employer is
  enrolled in the E-Verify program; and
                           (ii)  a right to work poster issued by the
  Office of Special Counsel for Immigration-Related Unfair
  Employment Practices of the Civil Rights Division of the United
  States Department of Justice; and
               (2)  each of the employer's employees who will
  administer the program has completed the program's computer-based
  tutorial.
         (c)  An employer shall maintain the signed original of the
  attestation form described by Subsection (b) and any documentation
  certifying completion of the E-Verify program's computer-based
  tutorial by the employer and its employees and make those documents
  available for inspection or copying by the commission at reasonable
  times.
         (d)  An employer who participates in the E-Verify program
  shall ensure that:
               (1)  the program is used by the employer and the
  employer's authorized employees for the sole purpose of verifying
  the employment authorization status of newly hired employees; and
               (2)  any information accessible through the E-Verify
  program and the means of access to the program are not disseminated
  to any person other than to an authorized employee performing
  employment verification duties on behalf of the employer.
         (e)  An employer enrolled in the E-Verify program violates
  this section if the employer:
               (1)  fails to display the notices required by
  Subsection (b) in the manner prescribed by that subsection;
               (2)  allows an employee to use an E-Verify program
  before completing the program's computer-based tutorial;
               (3)  fails to take reasonable steps to prevent an
  employee from assuming another employee's E-Verify program user
  identification or password in order to circumvent completing the
  program's computer-based tutorial;
               (4)  uses the E-Verify program to verify the employment
  eligibility of a job applicant before hiring the applicant or to
  otherwise use the program to screen an applicant before hiring and
  completing a Form I-9 in regard to the applicant;
               (5)  accesses information through the E-Verify program
  regarding an individual who is not an employee of the employer; or
               (6)  fails to safegard the information accessible
  through the E-Verify program and the means of access to the program,
  including user identifications, passwords, and other privacy
  protections.
  [Sections 53.054-53.100 reserved for expansion]
  SUBCHAPTER C. ENFORCEMENT
         Sec. 53.101.  COMMISSION INVESTIGATION; COMPLAINT
  RESOLUTION; CIVIL ACTION.  (a)  A person who has reason to believe
  that an employer has violated Section 53.053 may file a complaint
  with the commission in accordance with this section.
         (b)  A complaint must:
               (1)  be in writing on a form prescribed by the
  commission; and
               (2)  be verified by the person making the complaint.
         (c)  A person may file a complaint under this section:
               (1)  in person at an office of the commission; or
               (2)  by mailing the complaint, by certified mail, to an
  address designated by the commission.
         (d)  On receipt of a complaint, a staff member of the
  commission designated by the executive director shall investigate
  the complaint in an attempt to determine whether a violation of
  Section 53.053 occurred.  If the staff member determines that there
  is no substantial evidence that the employer violated Section
  53.053, the commission shall dismiss the complaint and inform the
  complainant in writing by certified mail of the dismissal and of the
  complainant's right to file a civil action under Section 53.102.
         (e)  If the staff member determines that there is substantial
  evidence that the employer violated Section 53.053, the commission
  shall endeavor to resolve the complaint by informal methods of
  conference, conciliation, and persuasion.
         (f)  If the commission does not resolve the complaint under
  Subsection (e), the commission may commence a civil action in a
  court in the county in which the complainant resides or in which the
  complainant is employed to compel compliance by the employer.  The
  commission shall recover court costs and reasonable attorney's fees
  in an action brought by the commission under this subsection.
         Sec. 53.102.  CIVIL ACTION BY EMPLOYEE OR EMPLOYMENT
  APPLICANT.  A person who is injured by an employer's violation of
  Section 53.053 may bring a civil action against the employer in a
  court in the county in which the complainant resides or in which the
  complainant is employed.
         Sec. 53.103.  CIVIL PENALTY; DAMAGES; LICENSE SUSPENSION.  
  On a finding that an employer violated Section 53.053, the court
  shall:
               (1)  assess against the employer a civil penalty of not
  more than $200 per employee affected by the violation, as well as
  court cost, and reasonable attorney's fees;
               (2)  for a wilful and knowing violation or a second
  violation, assess against the employer a civil penalty of not more
  than $500 per employee affected by the violation, as well as court
  cost, and reasonable attorney's fees; or
               (3)  for a third or subsequent violation:
                     (A)  assess against the employer a civil penalty
  of not more than $1000 per employee affected by the violation, as
  well as actual damages, court costs, and reasonable attorney's
  fees; and
                     (B)  order the suspension for at least 90 days of
  each license held by the employer.
         SECTION 2.  Subchapter B, Chapter 21, Labor Code, is amended
  by adding Section 21.062 to read as follows:
         Sec. 21.062.  DISCRIMINATION BY EMPLOYER PARTICIPATING IN
  E-VERIFY PROGRAM.  (a)  In this section, "E-Verify program" has the
  meaning assigned by Section 53.001.
         (b)  An employer participating in the E-Verify program
  commits an unlawful employment practice if the employer refuses to
  hire, segregates, or acts with respect to recruitment, hiring,
  promotion, renewal of employment, selection for training or
  apprenticeship, discharge, discipline, tenure, or terms,
  privileges, or conditions of employment in regard to an individual
  without following the procedures of the E-Verify program.
         SECTION 3.  Section 21.062, Labor Code, as added by this Act,
  applies to the conduct of an employer occurring on or after the
  effective date of this Act.  Conduct occurring before that date is
  governed by the law in effect on the date the conduct occurred, and
  the former law is continued in effect for that purpose.
         SECTION 4.  This Act takes effect September 1, 2011.