285.535. Attorney general to enforce--action to be initiated, when--complaint procedures--verification of status required--violations, corrective actions, penalties.

MISSOURI STATUTES AND CODES

285.535. Attorney general to enforce--action to be initiated, when--complaint procedures--verification of status required--violations, corrective actions, penalties.

Attorney general to enforce--action to be initiated, when--complaintprocedures--verification of status required--violations,corrective actions, penalties.

285.535. 1. The attorney general shall enforce the requirements ofsections 285.525 to 285.550.

2. An enforcement action shall be initiated by means of a written,signed complaint under penalty of perjury as defined in section 575.040,RSMo, to the attorney general submitted by any state official, businessentity, or state resident. A valid complaint shall include an allegationwhich describes the alleged violator as well as the actions constitutingthe violation, and the date and location where such actions occurred. Acomplaint which alleges a violation solely or primarily on the basis ofnational origin, ethnicity, or race shall be deemed invalid and shall notbe enforced.

3. Upon receipt of a valid complaint, the attorney general shall,within fifteen business days, request identity information from thebusiness entity regarding any persons alleged to be unauthorized aliens.Such request shall be made by certified mail. The attorney general shalldirect the applicable municipal or county governing body to suspend anyapplicable license, permit, or exemptions of any business entity whichfails, within fifteen business days after receipt of the request, toprovide such information.

4. The attorney general, after receiving the requested identityinformation from the business entity, shall submit identity data requiredby the federal government to verify, under 8 U.S.C. 1373, the immigrationstatus of such persons, and shall provide the business entity with writtennotice of the results of the verification request:

(1) If the federal government notifies the attorney general that anemployee is authorized to work in the United States, the attorney generalshall take no further action on the complaint;

(2) If the federal government notifies the attorney general that anemployee is not authorized to work in the United States, the attorneygeneral shall proceed on the complaint as provided in subsection 5 of thissection;

(3) If the federal government notifies the attorney general that itis unable to verify whether an employee is authorized to work in the UnitedStates, the attorney general shall take no further action on the complaintuntil a verification from the federal government concerning the status ofthe individual is received. At no point shall any state official attemptto make an independent determination of any alien's legal status withoutverification from the federal government.

5. (1) If the federal government notifies the attorney general thatan employee is not authorized to work in the United States, and theemployer of the unauthorized alien participates in a federal workauthorization program, there shall be a rebuttable presumption that theemployer has met the requirements for an affirmative defense undersubsection 4 of section 285.530, and the employer shall comply withsubsection 6 of this section.

(2) If the federal government notifies the attorney general that anemployee is not authorized to work in the United States, the attorneygeneral shall bring a civil action in Cole County if the attorney generalreasonably believes the business entity knowingly violated subsection 1 ofsection 285.530:

(a) If the court finds that a business entity did not knowinglyviolate subsection 1 of section 285.530, the employer shall have fifteenbusiness days to comply with subdivision (1) and paragraph (a) ofsubdivision (2) of subsection 6 of this section. If the entity fails to doso, the court shall direct the applicable municipal or county governingbody to suspend the business permit, if such exists, and any applicablelicenses or exemptions of the entity until the entity complies withsubsection 6 of this section;

(b) If the court finds that a business entity knowingly violatedsubsection 1 of section 285.530, the court shall direct the applicablemunicipal or county governing body to suspend the business permit, if suchexists, and any applicable licenses or exemptions of such business entityfor fourteen days. Permits, licenses, and exemptions shall be reinstatedfor entities who comply with subsection 6 of this section at the end of thefourteen-day period.

6. The correction of a violation with respect to the employment of anunauthorized alien shall include the following actions:

(1) (a) The business entity terminates the unauthorized alien'semployment. If the business entity attempts to terminate the unauthorizedalien's employment and such termination is challenged in a court of thestate of Missouri, the fifteen-business-day period for providinginformation to the attorney general referenced in subsection 3 of thissection shall be tolled while the business entity pursues the terminationof the unauthorized alien's employment in such forum; or

(b) The business entity, after acquiring additional information fromthe employee, requests a secondary or additional verification by thefederal government of the employee's authorization, under the procedures ofa federal work authorization program. While this verification is pending,the fifteen-business-day period for providing information to the attorneygeneral referenced in subsection 3 of this section shall be tolled; and

(2) A legal representative of the business entity submits, at anoffice designated by the attorney general, the following:

(a) A sworn affidavit stating that the violation has ended that shallinclude a description of the specific measures and actions taken by thebusiness entity to end the violation, and the name, address, and otheradequate identifying information for any unauthorized aliens related to thecomplaint; and

(b) Documentation acceptable to the attorney general which confirmsthat the business entity has enrolled in and is participating in a federalwork authorization program.

7. The suspension of a business license or licenses under subsection5 of this section shall terminate one business day after a legalrepresentative of the business entity submits the affidavit and otherdocumentation required under subsection 6 of this section following anyperiod of restriction required under subsection 5 of this section.

8. For an entity that violates subsection 1 of section 285.530 for asecond time, the court shall direct the applicable municipal or countygoverning body to suspend, for one year, the business permit, if suchexists, and any applicable license or exemptions of the business entity.For a subsequent violation, the court shall direct the applicable municipalor county governing body to forever suspend the business permit, if suchexists, and any applicable license or exemptions of the business entity.

9. In addition to the penalties in subsections 5 and 8 of thissection:

(1) Upon the first violation of subsection 1 of section 285.530 byany business entity awarded a state contract or grant or receiving astate-administered tax credit, tax abatement, or loan from the state, thebusiness entity shall be deemed in breach of contract and the state mayterminate the contract and suspend or debar the business entity from doingbusiness with the state for a period of three years. Upon suchtermination, the state may withhold up to twenty-five percent of the totalamount due to the business entity;

(2) Upon a second or subsequent violation of subsection 1 of section285.530 by any business entity awarded a state contract or grant orreceiving a state-administered tax credit, tax abatement, or loan from thestate, the business entity shall be deemed in breach of contract and thestate may terminate the contract and permanently suspend or debar thebusiness entity from doing business with the state. Upon such termination,the state may withhold up to twenty-five percent of the total amount due tothe business entity.

10. Sections 285.525 to 285.550 shall not be construed to deny anyprocedural mechanisms or legal defenses included in a federal workauthorization program.

11. Any business entity subject to a complaint and subsequentenforcement under sections 285.525 to 285.540, or any employee of such abusiness entity, may challenge the enforcement of this section with respectto such entity or employee in the courts of the state of Missouri.

12. If the court finds that any complaint is frivolous in nature orfinds no probable cause to believe that there has been a violation, thecourt shall dismiss the case. For purposes of this subsection, "frivolous"shall mean a complaint not shown by clear and convincing evidence to bevalid. Any person who submits a frivolous complaint shall be liable foractual, compensatory, and punitive damages to the alleged violator forholding the alleged violator before the public in a false light. If thecourt finds that a complaint is frivolous or that there is not probablecause to believe there has been a violation, the attorney general shallissue a public report to the complainant and the alleged violator statingwith particularity its reasons for dismissal of the complaint. Upon suchissuance, the complaint and all materials relating to the complaint shallbe a public record as defined in chapter 610, RSMo.

13. The determination of whether a worker is an unauthorized alienshall be made by the federal government. A determination of such status ofan individual by the federal government shall create a rebuttablepresumption as to that individual's status in any judicial proceedingsbrought under this section or section 285.530. The court may take judicialnotice of any verification of an individual's status previously provided bythe federal government and may request the federal government to provideautomated or testimonial verification.

14. Compensation, whether in money or in kind or in services,knowingly provided to any unauthorized alien shall not be allowed as abusiness expense deduction from any income or business taxes of this state.

15. Any business entity which terminates an employee in accordancewith this section shall not be liable for any claims made against thebusiness entity under chapter 213, RSMo, for the termination.