Client Bulletin #393

7.22.08

For a printer-friendly PDF copy of this Client Bulletin, click here.

What does the law say?

The law prohibits employers from knowingly employing, hiring, or continuing to employ unauthorized workers. The law’s definition of employer is broad, so that it includes virtually all private sector employers.

When does it take effect?

January 1, 2009.

What are the penalties for violating the law?

Upon receipt of a written complaint, which can be generated by any Missouri resident or business, the Attorney General will become involved and investigate.

If the Attorney General finds that the employer knowingly violated the law, the first offense results in a suspension of business licenses and permits for 14 days. A second violation results in suspension for one year, and a third violation results in permanent suspension.

If the Attorney General finds that the employer hired, employed, or retained an unauthorized alien but acted unknowingly, then the employer will have 15 business days to terminate the person’s employment, or to request a secondary or additional verification of the person’s status from the federal government. The employer has to provide an affidavit attesting to the end of the violation and register for a federal work authorization program.

Businesses contracting with the state are subject to being barred from any further state-contract work for up to three years if found in violation of the law. A termination of employment under this law does not expose the employer to liability under Chapter 213, which prohibits employment discrimination based (among other things) on race, color, national origin, or ancestry.

Do employers have any defenses?

Yes. An employer who enrolls in a federal work authorization program has an affirmative defense to any claims brought against it for allegedly violating the law.

There is also a defense for contractors. If a contract binding the parties affirmatively says that the direct subcontractor is not knowingly in violation of the law (that is, not knowingly employing, hiring, or retaining unauthorized workers), and the subcontractor provides an affidavit to that effect, the contractor will not be liable for any violations committed by the subcontractor.

What else does the law say?

If an employer has more than five workers, then it must file federal Forms 1099 with the state, or the resultant penalty is $200 per missing form.

Anyone who transports an unauthorized alien with the intent of employing him or her, faces a potential felony conviction of up to one year in prison and a $1,000 fine.

Going forward, all tests for commercial driver’s licenses will be given only in English.

Employers cannot deduct wages paid to unauthorized aliens from their income or business taxes.

What should Missouri employers be doing to comply with the law?

* Because enrollment in a federal verification program is a “safe harbor,” we recommend that all Missouri employers consider registering for E-Verify/Basic Pilot.

* Missouri employers should ensure that their federal Forms 1099 are being supplied to the state.

* Missouri employers who have drivers for whom CDLs are required must obviously make sure that each their drivers actually have CDLs. They should also recognize that applicants for CDLs will have to understand English, as the test no longer allows for an interpreter’s assistance.

* A Missouri contractor should amend the language of any agreement that it has with a subcontractor to include an affirmative statement that the subcontractor is in compliance with the law. The contractor should also be sure to get the affidavit from the subcontractor, as well.

Where do I go if I need more assistance with this new law?

Please contact any member of Constangy’s Kansas City, Missouri office, the Immigration Practice Group, or the Constangy attorney of your choice. 
  
Constangy, Brooks & Smith, LLC has counseled employers, exclusively, on labor and employment law matters since 1946. The firm represents Fortune 500 corporations and small companies across the country. More than 100 lawyers work with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, South Carolina, North Carolina, Tennessee, Florida, Alabama, Virginia, Missouri, and Texas. For more information about the firm's labor and employment services, visit www.constangy.com, or call toll free at 866-843-9555.

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