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Mdivani to Lead Panel of Experts on Application of Missouri Immigration Law to Employers
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Posted on September 20, 2009 In July of 2009, the Missouri government issued regulations governing the new state immigration law. Yet, employers have many unanswered questions as to how the law will apply. Mira Mdivani, Chair of the Missouri Bar Immigration Committee, will lead a panel of experts on October 15, 2009 as part of the Missouri Bar CLE series in order to clarify some of the pressing issues. Registration is at www.mobar.org. Agenda is below. AGENDA October 15, 2009 Kansas City, MO Missouri Immigration Law Affecting Employers: from E-Verify for State Actors and Contractors to Felony Penalties for Employers Accused of "Harboring" Unauthorized Workers I. Introduction - Overview of the Issues II. HR 1549 and Related Bills - Background A. Federal Law B. History of MO Legislation III. Prohibition to Employer Unauthorized Aliens; E-Verify; Affidavits Sections 285.525-285.550 A. Prohibited Conduct: “No business entity or employer shall knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work in the state of Missouri” B. Enforcement: 1. Enforcement Process: a. Enforced by MO Attorney General b. Enforcement begins with a written sworn complaint c. Employer to provide Employee ID information to MO Attorney General d. Civil Action in Cole County 2. Possible Penalties: a. Suspension of business permit, licenses or exemptions i. First time: for 14 days ii. Second time: for 1 year iii: Subsequent violations: permanent revocation (“suspend forever”) b. Termination of Contract, Debarment, Withholding of Payments i. First time violation breach of contract - termination of contact; suspension or debarment from doing business with the state for up to three years; up to 25% of amount due withheld ii. Second time: Breach of contract - termination of contact, suspension or debarment from doing business with the state; Up to 25% of amount due withheld c. Compensation to Authorized Alien Not Allowed as a Business Expense 1. “Compensation, whether in money or in kind or in services, knowingly provided to unauthorized alien, shall not be allowed as a business expense deduction from any income or business taxes of this state. “ 3. Employer’s Action: a. Terminate unauthorized alien (?) b. Acquire information from employee c. E-Verify (?) d. Submit affidavit to state describing specific measures taken e. Provide other documentation to MO Attorney General d. Employees (and Employee) may challenge the enforcement action in the courts of the state of Missouri i. Will be dismissed if “frivolous” ii. “Frivolous” means “a complaint not shown by clear and convincing evidence to be valid” C. Definitions 1. Broad Definitions a. “Business entity” b. “Contractor” c. “Employer” d. “Federal Work Authorization Program” e. “Political Subdivision” f. “Public Employer” g. “Work” h. “Unauthorized Alien” and Other Definitions 2. “Knowingly” - very broad “... a person acts knowingly or with knowledge; with respect to the person’s conduct or to attendant circumstances when the person is aware of the nature of the person’s conduct or that those circumstances exists; or with respect to a result of the person’s conduct we the person is aware that the person’s conduct is practically certain to cause that result” IV. State Contractors and Other Private Employers: E-Verify and Affidavit Requirement A. Who is Covered? 1. Employers with a State contract or grant in excess of $5,000 2. State administered or subsidized tax credit 3. Tax abatement 4. Loan from the state B. Covered Employers Must Use E-Verify C. What Two Affidavits are Required? 1. E-Verify Affidavit Covered employers need to sign an Affidavit and provide Documents affirming participation in E-Verify 2. “No Unauthorized Aliens” Affidavit Covered employers Affidavit affirming that business entity does not “knowingly employ any person who is an unauthorized alien” in connection with the contracted services V. Pubic Employers Must Use E-Verify 1. All Public Employers should enroll in E-Verify 2. “Actively participate” (?) VI. E-Verify is Safe Harbor for All Employers under MO Law 1. Must retain copies of E-Verify Printouts 2. Affirmative defense VII. Contractor Agreement and Affidavit - Safe Harbor for All Employers Under MO Law 1. Safe Harbor for a general contractor or subcontractor of any tier if its direct subcontractor violates the law 2. Agreement/Contract If contracts between the contractor and subcontractors affirmatively states that the direct subcontractor: “Is not knowingly in violation of subsection 1 of this section and shall not henceforth be in such violation of Section one of RSMO 285.530” 3. Contractor Affidavit and provides and sworn affidavit under the penalty of perjury attesting to the fact that the direct subcontractors’s employees are “lawfully present in the Unites States” VII. New MO Rule Implementing the Law 1. What the Rule Says 2. Does the Rule Go Too Far? IX. Worker Misclassification A What does this have to do with Immigration? B. Prohibits Misclassification of workers C Penalties for Misclassification: 1. Injunction 2 $50 per day per worker 3. 5 or more employees: file 1099 with MO Department of Revenue X. New OSHA Ten-Hour Training Requirements A. Nothing to do with Immigration B. Who is covered? Any person with contract to work on the construction of public works for any public body C. What Are the Requirements? Ten-hour Occupational Safety and Health Administration (OSHA) construction safety program for on-site employees, which include a course in construction safety and health approved by OSHA or a similar program approved by the department which is at least as stringent as an approved OSHA program D. Timeline All employees are required to complete the program within sixty days of beginning work on the construction project D. Penalties 1. Penalties determined by Contract 2. Penalties imposed by contracting department 3. If not paid within 45 days enforced through courts XI. Conclusions |