23-212

23-212. Knowingly employing unauthorized
aliens; prohibition; false and frivolous complaints; violation;
classification; license suspension and revocation; affirmative
defense

A. An employer shall not knowingly employ an unauthorized alien. If, in the case
when an employer uses a contract, subcontract or other independent contractor agreement
to obtain the labor of an alien in this state, the employer knowingly contracts with an
unauthorized alien or with a person who employs or contracts with an unauthorized alien
to perform the labor, the employer violates this subsection.

B. The attorney general shall prescribe a complaint form for a person to allege a
violation of subsection A of this section. The complainant shall not be required to list
the complainant's social security number on the complaint form or to have the complaint
form notarized. On receipt of a complaint on a prescribed complaint form that an employer
allegedly knowingly employs an unauthorized alien, the attorney general or county
attorney shall investigate whether the employer has violated subsection A of this
section. If a complaint is received but is not submitted on a prescribed complaint form,
the attorney general or county attorney may investigate whether the employer has violated
subsection A of this section. This subsection shall not be construed to prohibit the
filing of anonymous complaints that are not submitted on a prescribed complaint form.
The attorney general or county attorney shall not investigate complaints that are based
solely on race, color or national origin. A complaint that is submitted to a county
attorney shall be submitted to the county attorney in the county in which the alleged
unauthorized alien is or was employed by the employer. The county sheriff or any other
local law enforcement agency may assist in investigating a complaint. When investigating
a complaint, the attorney general or county attorney shall verify the work authorization
of the alleged unauthorized alien with the federal government pursuant to 8 United States
Code section 1373(c). A state, county or local official shall not attempt to
independently make a final determination on whether an alien is authorized to work in the
United States. An alien's immigration status or work authorization status shall be
verified with the federal government pursuant to 8 United States Code section 1373(c). A
person who knowingly files a false and frivolous complaint under this subsection is
guilty of a class 3 misdemeanor.

C. If, after an investigation, the attorney general or county attorney determines
that the complaint is not false and frivolous:

1. The attorney general or county attorney shall notify the United States
immigration and customs enforcement of the unauthorized alien.

2. The attorney general or county attorney shall notify the local law enforcement
agency of the unauthorized alien.

3. The attorney general shall notify the appropriate county attorney to bring an
action pursuant to subsection D of this section if the complaint was originally filed
with the attorney general.

D. An action for a violation of subsection A of this section shall be brought
against the employer by the county attorney in the county where the unauthorized alien
employee is or was employed by the employer. The county attorney shall not bring an
action against any employer for any violation of subsection A of this section that occurs
before January 1, 2008. A second violation of this section shall be based only on an
unauthorized alien who is or was employed by the employer after an action has been
brought for a violation of subsection A of this section or section 23-212.01, subsection
A.

E. For any action in superior court under this section, the court shall expedite
the action, including assigning the hearing at the earliest practicable date.

F. On a finding of a violation of subsection A of this section:

1. For a first violation, as described in paragraph 3 of this subsection, the
court:

(a) Shall order the employer to terminate the employment of all unauthorized
aliens.

(b) Shall order the employer to be subject to a three year probationary period for
the business location where the unauthorized alien performed work. During the
probationary period the employer shall file quarterly reports in the form provided in
section 23-722.01 with the county attorney of each new employee who is hired by the
employer at the business location where the unauthorized alien performed work.

(c) Shall order the employer to file a signed sworn affidavit with the county
attorney within three business days after the order is issued. The affidavit shall state
that the employer has terminated the employment of all unauthorized aliens in this state
and that the employer will not intentionally or knowingly employ an unauthorized alien in
this state. The court shall order the appropriate agencies to suspend all licenses
subject to this subdivision that are held by the employer if the employer fails to file a
signed sworn affidavit with the county attorney within three business days after the
order is issued. All licenses that are suspended under this subdivision shall remain
suspended until the employer files a signed sworn affidavit with the county attorney.
Notwithstanding any other law, on filing of the affidavit the suspended licenses shall be
reinstated immediately by the appropriate agencies. For the purposes of this subdivision,
the licenses that are subject to suspension under this subdivision are all licenses that
are held by the employer specific to the business location where the unauthorized alien
performed work. If the employer does not hold a license specific to the business location
where the unauthorized alien performed work, but a license is necessary to operate the
employer's business in general, the licenses that are subject to suspension under this
subdivision are all licenses that are held by the employer at the employer's primary
place of business. On receipt of the court's order and notwithstanding any other law, the
appropriate agencies shall suspend the licenses according to the court's order. The court
shall send a copy of the court's order to the attorney general and the attorney general
shall maintain the copy pursuant to subsection G of this section.

(d) May order the appropriate agencies to suspend all licenses described in
subdivision (c) of this paragraph that are held by the employer for not to exceed ten
business days. The court shall base its decision to suspend under this subdivision on any
evidence or information submitted to it during the action for a violation of this
subsection and shall consider the following factors, if relevant:

(i) The number of unauthorized aliens employed by the employer.

(ii) Any prior misconduct by the employer.

(iii) The degree of harm resulting from the violation.

(iv) Whether the employer made good faith efforts to comply with any applicable
requirements.

(v) The duration of the violation.

(vi) The role of the directors, officers or principals of the employer in the
violation.

(vii) Any other factors the court deems appropriate.

2. For a second violation, as described in paragraph 3 of this subsection, the
court shall order the appropriate agencies to permanently revoke all licenses that are
held by the employer specific to the business location where the unauthorized alien
performed work. If the employer does not hold a license specific to the business location
where the unauthorized alien performed work, but a license is necessary to operate the
employer's business in general, the court shall order the appropriate agencies to
permanently revoke all licenses that are held by the employer at the employer's primary
place of business. On receipt of the order and notwithstanding any other law, the
appropriate agencies shall immediately revoke the licenses.

3. The violation shall be considered:

(a) A first violation by an employer at a business location if the violation did
not occur during a probationary period ordered by the court under this subsection or
section 23-212.01, subsection F for that employer's business location.

(b) A second violation by an employer at a business location if the violation
occurred during a probationary period ordered by the court under this subsection or
section 23-212.01, subsection F for that employer's business location.

G. The attorney general shall maintain copies of court orders that are received
pursuant to subsection F of this section and shall maintain a database of the employers
and business locations that have a first violation of subsection A of this section and
make the court orders available on the attorney general's website.

H. On determining whether an employee is an unauthorized alien, the court shall
consider only the federal government's determination pursuant to 8 United States Code
section 1373(c). The federal government's determination creates a rebuttable presumption
of the employee's lawful status. The court may take judicial notice of the federal
government's determination and may request the federal government to provide automated or
testimonial verification pursuant to 8 United States Code section 1373(c).

I. For the purposes of this section, proof of verifying the employment
authorization of an employee through the e-verify program creates a rebuttable
presumption that an employer did not knowingly employ an unauthorized alien.

J. For the purposes of this section, an employer that establishes that it has
complied in good faith with the requirements of 8 United States Code section 1324a(b)
establishes an affirmative defense that the employer did not knowingly employ an
unauthorized alien. An employer is considered to have complied with the requirements of 8
United States Code section 1324a(b), notwithstanding an isolated, sporadic or accidental
technical or procedural failure to meet the requirements, if there is a good faith
attempt to comply with the requirements.

K. It is an affirmative defense to a violation of subsection A of this section that
the employer was entrapped. To claim entrapment, the employer must admit by the
employer's testimony or other evidence the substantial elements of the violation. An
employer who asserts an entrapment defense has the burden of proving the following by a
preponderance of the evidence:

1. The idea of committing the violation started with law enforcement officers or
their agents rather than with the employer.

2. The law enforcement officers or their agents urged and induced the employer to
commit the violation.

3. The employer was not predisposed to commit the violation before the law
enforcement officers or their agents urged and induced the employer to commit the
violation.

L. An employer does not establish entrapment if the employer was predisposed to
violate subsection A of this section and the law enforcement officers or their agents
merely provided the employer with an opportunity to commit the violation. It is not
entrapment for law enforcement officers or their agents merely to use a ruse or to
conceal their identity. The conduct of law enforcement officers and their agents may be
considered in determining if an employer has proven entrapment.