Senate Bill S5246

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5246

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 15, 2013
                               ___________

Introduced  by  Sen.  BALL  --  read twice and ordered printed, and when
  printed to be committed to the Committee on Civil Service and Pensions

AN ACT to amend the civil service  law and the labor law, in relation to
  requiring employers to register for and participate  in  the  E-verify
  program  for  verification of employment eligibility; and to amend the
  state finance law and  the  general  municipal  law,  in  relation  to
  requiring persons and entities contracting with the state or a munici-
  pality to participate in such program

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The civil service law is amended by adding  a  new  section
153 to read as follows:
  S 153. PUBLIC EMPLOYER VERIFICATION OF EMPLOYMENT ELIGIBILITY.  1. FOR
THE PURPOSES OF THIS SECTION:
  (A)  "E-VERIFY PROGRAM" MEANS THE ELECTRONIC VERIFICATION PROGRAM THAT
IS AUTHORIZED BY THE ILLEGAL IMMIGRATION REFORM AND IMMIGRATION  RESPON-
SIBILITY ACT OF 1996, PUBLIC LAW 104-208, DIVISION C, SECTION 403 (A); 8
U.S.C.  SECTION  1324  (H)  (3), AND JOINTLY ADMINISTERED BY THE FEDERAL
DEPARTMENT OF HOMELAND SECURITY AND SOCIAL SECURITY  ADMINISTRATION,  OR
ITS SUCCESSOR PROGRAM.
  (B)  THE TERM "PUBLIC EMPLOYEE" MEANS ANY PERSON HOLDING A POSITION BY
APPOINTMENT OR EMPLOYMENT IN THE SERVICE OF A PUBLIC EMPLOYER.
  (C) THE TERM "PUBLIC EMPLOYER" MEANS (I) THE STATE OF NEW YORK, (II) A
COUNTY, CITY, TOWN, VILLAGE OR ANY OTHER POLITICAL SUBDIVISION OR  CIVIL
DIVISION OF THE STATE, (III) A SCHOOL DISTRICT OR ANY GOVERNMENTAL ENTI-
TY  OPERATING  A  PUBLIC  SCHOOL,  COLLEGE  OR UNIVERSITY, (IV) A PUBLIC
IMPROVEMENT OR SPECIAL DISTRICT, (V) A PUBLIC AUTHORITY, COMMISSION,  OR
PUBLIC BENEFIT CORPORATION, (VI) ANY OTHER PUBLIC CORPORATION, AGENCY OR
INSTRUMENTALITY  OR  UNIT  OF  GOVERNMENT  WHICH  EXERCISES GOVERNMENTAL
POWERS UNDER THE LAWS OF THE STATE, OR (VII) ANY OTHER PERSON OR  ENTITY
ACTING  ON  BEHALF OF AN ENTITY LISTED IN ANY OTHER SUBPARAGRAPH OF THIS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09163-01-3
              

S. 5246                             2

PARAGRAPH AND WHICH RECEIVES PUBLIC  FUNDS,  OR  ANY  PERSON  OR  ENTITY
PERFORMING PUBLIC WORK PURSUANT TO ARTICLE EIGHT OF THE LABOR LAW.
  2.  EVERY  PUBLIC  EMPLOYER  SHALL REGISTER FOR AND PARTICIPATE IN THE
E-VERIFY PROGRAM FOR THE PURPOSE OF VERIFYING THE EMPLOYMENT ELIGIBILITY
STATUS OF EVERY PROSPECTIVE PUBLIC EMPLOYEE. NO PUBLIC EMPLOYEE SHALL BE
APPOINTED OR EMPLOYED UNTIL THE PUBLIC EMPLOYER SHALL HAVE VERIFIED  HIS
OR HER ELIGIBILITY FOR EMPLOYMENT PURSUANT TO THE E-VERIFY PROGRAM.
  3.  THE  COMMISSION,  IN CONSULTATION WITH THE ATTORNEY GENERAL, SHALL
PROMULGATE AND ADMINISTER SUCH RULES AND  REGULATIONS  AS  IT  MAY  DEEM
APPROPRIATE  AND  NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS SECTION.
THE DEPARTMENT SHALL BE AUTHORIZED  TO  INSPECT  ANY  PUBLIC  EMPLOYER'S
RECORDS CONCERNING SUCH EMPLOYER'S REGISTRATION AND PARTICIPATION IN THE
E-VERIFY PROGRAM.
  4. IF AFTER INVESTIGATION THE COMMISSION MAKES A FINDING THAT A PUBLIC
EMPLOYER  HAS  WILLFULLY  OR  INTENTIONALLY  FAILED  TO  REGISTER FOR OR
PARTICIPATE IN THE E-VERIFY  PROGRAM,  THE  COMMISSION  SHALL  ISSUE  AN
ORDER, TO THE CHIEF EXECUTIVE OFFICER OF THE PUBLIC EMPLOYER, DESCRIBING
THE  NATURE OF THE VIOLATION AND ORDERING COMPLIANCE WITHIN THIRTY DAYS.
ANY FAILURE TO COMPLY WITH SUCH PERIOD SHALL BE REFERRED TO THE ATTORNEY
GENERAL WHO SHALL COMMENCE AN ACTION IN SUPREME  COURT  TO  ENFORCE  THE
PROVISIONS OF THIS SECTION.
  S 2. The labor law is amended by adding a new section 219-b to read as
follows:
  S  219-B.  EMPLOYER  VERIFICATION  OF EMPLOYMENT ELIGIBILITY; E-VERIFY
PROGRAM. 1. FOR THE PURPOSE OF THIS SECTION, THE FOLLOWING  WORDS  SHALL
BE DEFINED AS FOLLOWS:
  (A) "EMPLOYER" MEANS ANY PERSON, ENTITY, BUSINESS, CORPORATION, LIMIT-
ED  LIABILITY  COMPANY,  OR  ASSOCIATION EMPLOYING ANY INDIVIDUAL IN ANY
OCCUPATION, INDUSTRY, TRADE, BUSINESS OR SERVICE;
  (B) "EMPLOYEE" MEANS ANY PERSON OR ENTITY  EMPLOYED  FOR  HIRE  BY  AN
EMPLOYER IN ANY EMPLOYMENT; AND
  (C)  "E-VERIFY  PROGRAM"  MEANS THE ELECTRONIC EMPLOYMENT VERIFICATION
PROGRAM THAT IS AUTHORIZED BY THE ILLEGAL IMMIGRATION REFORM  AND  IMMI-
GRATION  RESPONSIBILITY  ACT  OF  1996,  PUBLIC LAW 104-208, DIVISION C,
SECTION 403(A); 8 U.S.C. SECTION 1324(A)(H)(3), AND JOINTLY ADMINISTERED
BY THE UNITED STATES DEPARTMENT OF  HOMELAND  SECURITY  AND  THE  SOCIAL
SECURITY ADMINISTRATION, OR ITS SUCCESSOR PROGRAM.
  2.  EVERY  EMPLOYER SHALL REGISTER FOR AND PARTICIPATE IN THE E-VERIFY
PROGRAM, OR ITS SUCCESSOR PROGRAM, FOR  THE  PURPOSE  OF  VERIFYING  THE
EMPLOYMENT  ELIGIBILITY  STATUS OF SUCH EMPLOYER'S NEWLY HIRED EMPLOYEES
BY THE FOLLOWING DATES:
  (A) FOR AN EMPLOYER WITH ONE HUNDRED OR MORE EMPLOYEES, NO LATER  THAN
JULY FIRST, TWO THOUSAND FOURTEEN;
  (B)  FOR  AN EMPLOYER WITH AT LEAST FIFTY EMPLOYEES BUT FEWER THAN ONE
HUNDRED EMPLOYEES, NO LATER THAN JANUARY FIRST, TWO THOUSAND FIFTEEN;
  (C) FOR AN EMPLOYER WITH AT LEAST TWENTY-FIVE EMPLOYEES BUT FEWER THAN
FIFTY EMPLOYEES, NO LATER THAN JANUARY FIRST, TWO THOUSAND SIXTEEN;
  (D) FOR ALL OTHER EMPLOYERS, NO LATER THAN JANUARY FIRST, TWO THOUSAND
SEVENTEEN.
  IF AN EMPLOYER FAILS TO COMPLY WITH THE PROVISIONS  OF  THIS  SUBDIVI-
SION, SUCH EMPLOYER SHALL BE SUBJECT TO THE CIVIL PENALTIES SET FORTH IN
SUBDIVISION FOUR OF THIS SECTION.
  3.  THE  COMMISSIONER  SHALL PROMULGATE AND ADMINISTER RULES AND REGU-
LATIONS AS HE OR SHE MAY DEEM APPROPRIATE AND  NECESSARY  TO  EFFECTUATE
THE  PROVISIONS OF THIS SECTION. THE COMMISSIONER SHALL BE AUTHORIZED TO
INSPECT ANY  EMPLOYER'S  BUSINESS  RECORDS  CONCERNING  SUCH  EMPLOYER'S

S. 5246                             3

REGISTRATION AND PARTICIPATION IN THE E-VERIFY PROGRAM. IF SUCH EMPLOYER
FAILS TO REGISTER OR PARTICIPATE IN SUCH PROGRAM PURSUANT TO SUBDIVISION
TWO  OF THIS SECTION, THE COMMISSIONER SHALL BE AUTHORIZED TO IMPOSE THE
CIVIL PENALTIES SET FORTH IN SUBDIVISION FOUR OF THIS SECTION.
  4.  IF  AFTER  INVESTIGATION  THE COMMISSIONER MAKES A FINDING THAT AN
EMPLOYER HAS WILLFULLY  OR  INTENTIONALLY  FAILED  TO  REGISTER  FOR  OR
PARTICIPATE  IN  THE E-VERIFY PROGRAM, AS REQUIRED BY SUBDIVISION TWO OF
THIS SECTION, THE COMMISSIONER SHALL BY AN ORDER  WHICH  SHALL  DESCRIBE
PARTICULARLY  THE  NATURE  OF THE VIOLATION, ASSESS THE EMPLOYER A CIVIL
PENALTY OF NOT MORE  THAN  ONE  THOUSAND  DOLLARS  FOR  THE  FIRST  SUCH
VIOLATION  AND  NOT  MORE  THAN  TWO  THOUSAND DOLLARS FOR A SECOND SUCH
VIOLATION. SUCH PENALTY SHALL BE PAID TO THE COMMISSIONER FOR DEPOSIT IN
THE TREASURY OF THE STATE. UPON A THIRD VIOLATION, AN EMPLOYER SHALL  BE
SUBJECT  TO  THE CANCELLATION OF ANY STATE OR PUBLIC CONTRACT, RESULTING
IN INELIGIBILITY FOR ANY STATE OR PUBLIC CONTRACT FOR UP TO FIVE  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 NEW YORK FOR THE RIGHT TO DO BUSINESS IN NEW YORK FOR UP TO ONE
YEAR,  OR  BOTH.  THE  EMPLOYER SHALL BE LIABLE FOR ANY ADDITIONAL COSTS
INCURRED BY THE AGENCIES AND INSTITUTIONS OF THE STATE OF NEW  YORK,  OR
ANY  OF  ITS  POLITICAL SUBDIVISIONS, BECAUSE OF THE CANCELLATION OF THE
CONTRACT OR LOSS OF ANY LICENSE OR PERMIT TO DO BUSINESS IN THE STATE.
  S 3. The state finance law is amended by adding a new section 135-b to
read as follows:
  S 135-B. STATE CONTRACTOR VERIFICATION OF EMPLOYMENT  ELIGIBILITY.  1.
FOR THE PURPOSES OF THIS SECTION, "E-VERIFY PROGRAM" MEANS THE ELECTRON-
IC  VERIFICATION  PROGRAM  THAT IS AUTHORIZED BY THE ILLEGAL IMMIGRATION
REFORM AND IMMIGRATION RESPONSIBILITY ACT OF 1996, PUBLIC  LAW  104-208,
DIVISION C, SECTION 403(A); 8 U.S.C. SECTION 1324 (A)(H)(3), AND JOINTLY
ADMINISTERED  BY  THE FEDERAL DEPARTMENT OF HOMELAND SECURITY AND SOCIAL
SECURITY ADMINISTRATION, OR ITS SUCCESSOR PROGRAM.
  2. A CLAUSE SHALL BE INSERTED IN ALL SPECIFICATIONS OR CONTRACTS  MADE
OR  AWARDED  BY  THE  STATE OR ANY PUBLIC DEPARTMENT, AGENCY OR OFFICIAL
THEREOF, OR BY A PUBLIC AUTHORITY OR PUBLIC BENEFIT CORPORATION FOR WORK
OR SERVICES PERFORMED OR TO BE PERFORMED, OR FOR GOODS  SOLD  OR  TO  BE
SOLD  PURSUANT  TO  WHICH  ANY CONTRACTOR, TO WHOM ANY CONTRACT SHALL BE
LET, GRANTED OR AWARDED, AGREES AS A MATERIAL CONDITION OF THE CONTRACT,
THAT SUCH CONTRACTOR AND EVERY SUBSTANTIALLY OWNED OR AFFILIATED PERSON,
FIRM, PARTNERSHIP, LIMITED LIABILITY COMPANY OR CORPORATION,  AND  EVERY
SUBCONTRACTOR  OF SUCH CONTRACTOR HAS REGISTERED FOR AND PARTICIPATES IN
THE E-VERIFY PROGRAM.
  3. ANY SUCH CONTRACT SHALL BE RENDERED FORFEIT AND VOID BY  THE  STATE
COMPTROLLER,  IF  THE DEPARTMENT OF LABOR OR THE DEPARTMENT OF LAW SHALL
FIND THAT SUCH PERSON, FIRM, PARTNERSHIP, LIMITED LIABILITY  COMPANY  OR
CORPORATION  HAS  FAILED  TO REGISTER FOR OR PARTICIPATE IN THE E-VERIFY
PROGRAM.
  4. NOTHING CONTAINED IN THIS  SECTION  SHALL  OPERATE  TO  IMPAIR  ANY
EXISTING CONTRACT, EXCEPT THAT ANY RENEWAL, AMENDMENT OR MODIFICATION OF
SUCH  CONTRACT  OCCURRING ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION
SHALL BE SUBJECT TO THE CONDITIONS SPECIFIED IN THIS SECTION.
  S 4. The general municipal law is amended  by  adding  a  new  section
103-h to read as follows:
  S 103-H. MUNICIPAL CONTRACTOR VERIFICATION FOR EMPLOYMENT ELIGIBILITY.
1.  FOR THE PURPOSES OF THIS SECTION, "E-VERIFY PROGRAM" MEANS THE ELEC-
TRONIC VERIFICATION PROGRAM THAT IS  AUTHORIZED  BY  THE  ILLEGAL  IMMI-
GRATION  REFORM  AND  IMMIGRATION RESPONSIBILITY ACT OF 1996, PUBLIC LAW

S. 5246                             4

104-208, DIVISION C, SECTION 403(A); 8 U.S.C. SECTION 1324(A)(H)(3), AND
JOINTLY ADMINISTERED BY THE FEDERAL DEPARTMENT OF HOMELAND SECURITY  AND
SOCIAL SECURITY ADMINISTRATION, OR ITS SUCCESSOR PROGRAM.
  2.  A CLAUSE SHALL BE INSERTED IN ALL SPECIFICATIONS OR CONTRACTS MADE
OR AWARDED BY A POLITICAL SUBDIVISION, FIRE COMPANY OR  VOLUNTARY  AMBU-
LANCE  SERVICE, OR ANY PUBLIC DEPARTMENT, AGENCY OR OFFICIAL THEREOF FOR
WORK OR SERVICES PERFORMED OR TO BE PERFORMED, OR FOR GOODS SOLD  OR  TO
BE  SOLD PURSUANT TO WHICH ANY CONTRACTOR, TO WHOM ANY CONTRACT SHALL BE
LET, GRANTED  OR  AWARDED,  AGREES,  AS  A  MATERIAL  CONDITION  OF  THE
CONTRACT,  THAT  SUCH CONTRACTOR AND EVERY SUBSTANTIALLY OWNED OR AFFIL-
IATED PERSON, FIRM, PARTNERSHIP, LIMITED  LIABILITY  COMPANY  OR  CORPO-
RATION,  AND  EVERY  SUBCONTRACTOR OF SUCH CONTRACTOR HAS REGISTERED FOR
AND PARTICIPATES IN THE E-VERIFY PROGRAM.
  3. ANY SUCH CONTRACT SHALL BE RENDERED FORFEIT AND VOID BY  THE  STATE
COMPTROLLER,  IF  THE DEPARTMENT OF LABOR OR THE DEPARTMENT OF LAW SHALL
FIND THAT SUCH PERSON, FIRM, PARTNERSHIP, LIMITED LIABILITY  COMPANY  OR
CORPORATION  HAS  FAILED  TO REGISTER FOR OR PARTICIPATE IN THE E-VERIFY
PROGRAM.
  4. NOTHING CONTAINED IN THIS  SECTION  SHALL  OPERATE  TO  IMPAIR  ANY
EXISTING CONTRACT, EXCEPT THAT ANY RENEWAL, AMENDMENT OR MODIFICATION OF
SUCH  CONTRACT  OCCURRING ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION
SHALL BE SUBJECT TO THE CONDITIONS SPECIFIED IN THIS SECTION.
  S 5. This act shall take effect on the first of January next  succeed-
ing  the date on which it shall have become a law, provided that, effec-
tive immediately, any actions necessary to implement the  provisions  of
this  act  on  its  effective  date  are  authorized  and directed to be
completed on or before such date.