2014 Regular Session
To: Judiciary B
By: Representative Gipson
AN ACT TO AMEND SECTION 71-11-3, MISSISSIPPI CODE OF 1972, TO REVISE THE EMPLOYMENT PROTECTION ACT TO CONFORM WITH FEDERAL LAW AND REGULATIONS REGARDING THE HIRING OF UNAUTHORIZED ALIENS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 71-11-3, Mississippi Code of 1972, is amended as follows:
71-11-3. (1) This chapter 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. "Employee" does not include an independent contractor as defined by federal law and regulation.
(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) * * *
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.
(h) "Knowingly employ an unauthorized alien" shall have the same meaning as prescribed in Section 1324a of Title 8 of the United States Code. This term shall be interpreted consistently with such section and any federal rules and regulations applicable thereto.
(4) (a) Employers in the
State of Mississippi shall * * *
not knowingly employ an
unauthorized alien. For purposes of this section, * * * an unauthorized alien is an
individual who was not lawfully present in the United States at the time
of employment and for the duration of employment, or was not 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 * * *
to verify the federal employment authorization status of all newly hired
contractor or subcontractor shall hire any employee unless the contractor or
subcontractor registers and participates in the * * *
to verify the work eligibility status of all newly hired employees.
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 * * *
to verify information of all newly hired employees.
(iv) Employers shall complete work authorization verification within three (3) days of hiring an employee.
(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) * * *
For purposes of this section, an
employer who has enrolled and participated in the E-Verify program in
compliance with this section within three (3) days of the date of hiring an
alleged unauthorized alien has a rebuttable presumption that the employer did
not knowingly employ an unauthorized alien in violation of 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.
employers shall provide proof of registration and any participation in the * * *
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) 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.
* * *
SECTION 2. This act shall take effect and be in force from and after July 1, 2014.