Notification by Federal Government that Individual is Not Authorized to Work

PURPOSE: This rule describes the process to be utilized when the federal government notifies the Missouri Attorney General’s Office that an individual is not authorized to work and the duties required of the employer by section 285.535, RSMo Supp. 2008. (1) Upon notification from the federal government to the Missouri Attorney General’s Office that an individual is not authorized to work, and the employer participates in a federal work authorization program, the Missouri Attorney General’s Office shall notify the employer to comply with section 285.535.6, RSMo Supp. 2008. (A) The employer shall, through its legal representative as noted in subsection (1)(B) below, submit evidence of one (1) of the following within thirty (30) days: 1. The business entity has terminated the individual, or is attempting to terminate the individual and is being challenged in court or other administrative proceeding; or 2. The business entity, after acquiring additional information from the employee, has requested a secondary or additional verification by the federal government of the employee’s authorization. (B) The legal representative of the business entity shall submit a sworn affidavit to the Missouri Attorney General, PO Box 899, Jefferson City, MO 65102, stating the violation has ended and provide: 1. Evidence of the specific measures taken to end the violation, which shall, at a minimum, include a notarized affidavit, from the human resources director or other officer of the business entity whose duties include terminating the employment of employees, etc., describing the events surrounding the termination of employment; 2. The name, address, and all identifying information available to the business entity concerning the unauthorized alien(s) related to the complaint; and 3. Evidence that the business entity has enrolled in, and is currently participating in, E-Verify, a federal work authorization program, or any other equivalent electronic verification of work authorization program operated by the United States Department of Homeland Security under the Immigration Reform and Control Act of 1986 (IRCA). (2) Enforcement Actions by Attorney General if Business Entity Employs an Unauthorized Worker. (A) If the federal government notifies the attorney general that a business entity has employed an unauthorized worker and the business entity has failed to correct the violation as set forth herein, the attorney general shall bring an action in the Circuit Court of Cole County if the attorney general reasonably believes the business entity knowingly employed or continued to employ an unauthorized worker in violation of section 285.530.1, RSMo Supp. 2008. In such action, the attorney general may ask the circuit court to direct any applicable state agency, political subdivision, and municipal or county governing body to suspend any business permits or license of the business entity until the entity complies with subsection 6. of 285.535, RSMo Supp. 2008. (3) Additional Penalties for Business Entity Having a Contract or Grant with State, Political Subdivision, County, or Municipality. (A) In addition to the penalties that may be assessed by a court for violation of the provisions of section 285.530.1, RSMo Supp. 2008, upon the first violation by any business entity awarded a contract or grant by the state, a political subdivision, municipality, or county or receiving a state-administered tax credit, tax abatement, or loan or loan guarantee from the state, the business entity shall be deemed in breach of contract and the state, political subdivision, municipality, or county may terminate the contract. Upon such termination, the state, political subdivision, municipality, or county may withhold up to twenty-five percent (25%) of the total amount due to the business entity. The state, political subdivision, municipality, or county shall notify the attorney general of any such termination. Upon receipt of notice of such termination of a contract or grant or a violation of section 285.530.1, RSMo Supp. 2008, by the recipient of a state-administered tax credit, tax abatement, or loan or loan guarantee from the state, the attorney general shall suspend or debar the business entity from doing business with any state, political subdivision, municipality, or county for a period of three (3) years. (B) Upon the second or subsequent violation by any business entity awarded a contract or grant by the state, a political subdivision, municipality, or county or receiving a stateadministered tax credit, tax abatement or loan or loan guarantee from the state, the business entity shall be deemed in breach of contract and the state, political subdivision, municipality, or county may terminate the contract. Upon such termination, the state may withhold up to twenty-five percent (25%) of the total amount due to the business entity. Upon receipt by the attorney general of notice of a second or subsequent violation, the attorney general shall permanently suspend or debar the business entity from doing business with the state. (4) The attorney general shall maintain on his website a list of all business entities suspended or debarred under this section. AUTHORITY: section 285.540, RSMo Supp. 2008.* Emergency rule filed March 2, 2009, effective March 12, 2009, expired Sept. 7, 2009. Original rule filed March 2, 2009, effective Aug. 30, 2009. *Original authority: 285.540, RSMo 2008.