[HISTORY: Adopted by the Town Board of the Town of Southeast
as indicated in article histories. Amendments noted where applicable.]
[Adopted 7-24-2008 by L.L. No. 3-2008]
A.
This Town Board hereby finds that there has been an ongoing national
debate regarding the unfairness and inequities between employers that
comply with all federal, state, and local laws and regulations in
connection with the hiring of their employees and employers that fail
to comply with such laws and regulations.
B.
This Town Board further finds and determines that these inequities
provide a financial disadvantage to those employers who comply with
all federal, state, and local laws and regulations in connection with
the hiring of their employees while, in turn, providing an unfair
financial advantage to those employers who do not comply with the
law.
C.
This Town Board further finds and determines that, since there has
been a lack of enforcement of a twenty-year old federal law (Simpson-Mazzoli)
that requires businesses to verify that their employees are legally
eligible to be employed in the United States, the Town of Southeast
has an opportunity to lead by example in an effort to prod the federal
government to undertake such enforcement action.
D.
This Town Board also finds and determines that employer noncompliance
with federal, state, and local laws and regulations that regulate
the hiring of employees results in diminished protections of employees
from unfair labor practices and fosters the circumvention of prevailing
wage and health insurance coverage requirements.
E.
This Town Board further finds and determines that the Town of Southeast
at present has no jurisdiction to enforce Simpson-Mazzoli.
F.
This Town Board also finds and determines that the Town of Southeast
has a finite amount of scarce taxpayer resources to expend, which
resources shall be spent wisely and prudently.
G.
This Town Board further finds that the Town of Southeast provides
contracts, license agreements, leases and other forms of financial
assistance to businesses that result in the creation and maintenance
of a wide variety of employment opportunities in Southeast, thereby
affording the Town the opportunity to utilize its economic and financial
leverage to compel local businesses to comply with the federal law
requiring businesses to verify that their employees are legally eligible
to be employed in the United States.
H.
Therefore, the purpose of this article is to provide a means of assisting
the enforcement of the federal law requiring businesses to verify
that their employees are legally eligible to be employed in the United
States, by providing an enforcement mechanism at the Town level against
noncompliant businesses that do business with the Town of Southeast,
by:
(1)
Helping to promote the federal policy of requiring employers to verify
the employment status of potential employees;
(2)
Helping to eliminate unfair competitive advantages between businesses;
(3)
Helping to eliminate unfair labor practices and worker exploitation;
and
(4)
Helping to assure taxpayers that employers and employees are paying
their fair share of taxes by complying with tax laws.
As used in this article, the following terms shall have the
meaning indicated:
Any person who is not a citizen or national of the United
States.
The Town Board or the subordinate or component entity or
person of the Town of Southeast that is responsible for solicitation
of proposals or bids and responsible for the award and administration
of contracts, license agreements, leases and other financial compensation
agreements.
Any loan, tax incentive funding, appropriation, payment, subsidy
or other form of financial assistance which is realized by or provided
to a covered employer, or the owners thereof, by or through the authority
or approval of the Town of Southeast including, but not limited to,
Industrial Development Agency (IDA) loans; and
Any contract, subcontract, license agreement, lease or other
financial compensation agreement let to a person with or by the Town
of Southeast for the furnishing of services, goods, equipment, supplies,
materials, public works, or other property to or for the Town of Southeast.
A person who contracts to do work for another. This term
does not include wholesalers.
An individual employed on either a full-time, part-time,
temporary or seasonal basis, by a covered employer to perform work
on or for the project or matter for which the recipient has received
compensation.
A recipient of, or an applicant for, compensation that is
not exempt from this article, and who has at least one covered employee
working within the Town of Southeast.
One or more of the following or their agents, employees,
representatives and legal representatives: individuals, corporations,
partnerships, joint ventures, associations, labor organizations, educational
institutions, mutual companies, joint-stock companies, trusts, unincorporated
organizations, trustees, trustees in bankruptcy, receivers, fiduciaries
and other entities recognized at law by this Town.
An individual who: a) is a citizen or national of the United
States; or b) is an alien who is lawfully admitted for permanent residence,
is granted the status of an alien lawfully admitted for temporary
residence under Title 8 U.S.C. § 1160(a) or § 1255a(a)(1),
is admitted as a refugee under Title 8 U.S.C. § 1157, or
is granted asylum under Title 8 U.S.C. § 1158; but does
not include: (i) an alien who fails to apply for naturalization within
six months of the date the alien first becomes eligible (by virtue
of period of lawful permanent residence) to apply for naturalization
or, if later, within six months after the date of the enactment of
Title 8 U.S.C. § 1324b; and (ii) an alien who has applied
on a timely basis, but has not been naturalized as a citizen within
two years after the date of the application, unless the alien can
establish that the Alien is actively pursuing naturalization.
Any person or entity that is a recipient of compensation,
as defined in this article, and any contractor or subcontractor of
a recipient producing or providing goods, materials, supplies, public
works, or services to a recipient that are used by that recipient
in the project or matter for which the recipient has received compensation.
A period of time not to exceed 90 consecutive days at any
given time within a six-month period.
A person who takes portions of a contract from a covered
employer, a contractor or another subcontractor. This term does not
include wholesalers.
The Town of Southeast, any agency, office, position, administration,
department, division, bureau, board, commission, corporation, public
authority, special district or unit of government, the expenses of
which are paid in whole or in part by the Town of Southeast or over
which majority control is exercised by officers of the Town of Southeast
or of a Town-affiliated agency or their appointees.
A person who buys in comparatively large quantities, and
then resells, usually in small quantities, to a middleman or retailer,
but never to the ultimate consumer.
A.
Covered employees.
(1)
All covered employers, and the owners thereof, as the case may be,
that are recipients of compensation from the Town through any grant,
loan, subsidy, funding, appropriation, payment, tax incentive, contract,
subcontract, license agreement, lease or other financial compensation
agreement issued by the Town or an awarding agency, where such compensation
is 100% funded by the Town, shall submit a completed sworn affidavit
(under penalty of perjury), the form of which is annexed hereto as
Appendix A,[1] certifying that they have complied, in good faith, with
the requirements of Title 8 U.S.C. § 1324a (Aliens and Nationality)
with respect to the hiring of covered employees and with respect to
the alien and nationality status of the owners thereof. The affidavit
shall be executed by an authorized representative of the covered employer
or owner, as the case may be; shall be part of any executed contract,
subcontract, license agreement, lease or other financial compensation
agreement with the Town; and shall be made available to the public
upon request.
[1]
Editor's Note: Appendix A is attached to L.L. No. 3-2008
and on file in the office of the Town Clerk.
(2)
All such covered employers, and the owners thereof, as the case may
be, shall not discriminate against any covered employee or applicant
for employment with respect to the hiring, or recruitment or referral
for a fee, of such covered employee or applicant for employment, nor
shall such covered employers, and the owners thereof, as the case
may be, discriminate against any covered employee with respect to
the discharge of such covered employee, because of race, creed, color,
national origin, sex, age, gender, disability, sexual orientation,
military status, or marital status, or in the case of a protected
individual, because of such individual's citizenship status.
(3)
All such covered employers, and the owners thereof, as the case may be, shall not intimidate, threaten, coerce, or retaliate against any covered employee or applicant for employment for the purpose of interfering with any right or privilege secured under Title 8 U.S.C. § 1324b or because the covered employee or applicant for employment intends to file or has filed a charge or a complaint, testified, assisted, or participated in a manner in an investigation, proceeding, or hearing under Title 8 U.S.C. § 1324b. A covered employee or applicant for employment so intimidated, threatened, coerced, or retaliated against shall be considered to have been discriminated against for purposes of § 59-3A(2) of this article.
B.
Contractors and subcontractors.
(1)
All contractors and subcontractors of covered employers, and the
owners thereof, as the case may be, that are assigned to perform work
in connection with a Town contract, subcontract, license agreement,
lease or other financial compensation agreement issued by the Town
or awarding agency, where such compensation is 100% funded by the
Town, shall submit to the covered employer a completed sworn affidavit
(under penalty of perjury), the form of which is annexed hereto as
Appendix A,[2] certifying that they have complied, in good faith, with
the requirements of Title 8 U.S.C. § 1324a with respect
to the hiring of covered employees and with respect to the alien and
nationality status of the owners thereof, as the case may be. The
affidavit shall be executed by an authorized representative of the
contractor, subcontractor, or owner, as the case may be; shall be
part of any executed contract, subcontract, license agreement, lease
or other financial compensation agreement between the covered employer
and the Town; and shall be made available to the public upon request.
[2]
Editor's Note: Appendix A is attached to L.L. No. 3-2008
and on file in the office of the Town Clerk.
(2)
All such contractors and subcontractors of covered employers, and
the owners thereof, as the case may be, shall not discriminate against
any employee or applicant for employment with respect to the hiring,
or recruitment or referral for a fee, of such employee or applicant
for employment, nor shall such contractors and subcontractors of covered
employers, and the owners thereof, as the case may be, discriminate
against any employee with respect to the discharge of such employee,
because of race, creed, color, national origin, sex, age, gender,
disability, sexual orientation, military status, or marital status,
or in the case of a protected individual, because of such individual's
citizenship status.
(3)
All such contractors and subcontractors of covered employers, and the owners thereof, as the case may be, shall not intimidate, threaten, coerce, or retaliate against any employee or applicant for employment for the purpose of interfering with any right or privilege secured under Title 8 U.S.C. § 1324b or because the employee or applicant for employment intends to file or has filed a charge or a complaint, testified, assisted, or participated in a manner in an investigation, proceeding, or hearing under Title 8 U.S.C. § 1324b. An employee or applicant for employment so intimidated, threatened, coerced, or retaliated against shall be considered to have been discriminated against for purposes of § 59-3B(2) of this article.
C.
Covered employer and owner sworn affidavits shall be submitted to
the awarding agency at the following times:
(1)
Upon application made to the Town for any grant, loan, subsidy, tax
incentive funding, appropriation, payment, or other form of financial
assistance;
(2)
Upon submission to the Town of any response to a Town bid, request
for proposals (RFP), request for qualifications (RFQ), request for
expressions of interest (RFEI), or similar contract letting process,
including but limited to letting for license agreements, leases and
other financial compensation agreements;
(3)
On January 1 of each year for the duration of the Town contract,
subcontract, license agreement, lease or other financial compensation
agreement; and
(4)
Upon renewal and amendment of any Town contract, subcontract, license
agreement, lease or other financial compensation agreement.
D.
Contractor and subcontractor sworn affidavits shall be submitted
by the covered employer to the awarding agency at the following times:
(1)
Within one week after the contractor or subcontractor is hired by
the covered employer to perform the work in connection with the Town
contract, subcontract, license agreement, lease or other financial
compensation agreement;
(2)
In the event of a Town contract, subcontract, license agreement,
lease or other financial compensation agreement that is being renewed
or amended where a contractor or subcontractor was previously hired
by a covered employer to perform work in connection with such contract,
subcontract, license agreement, lease or other financial compensation
agreement, upon such renewal or amendment; and
(3)
On January 1 of each year for the duration of the Town contract,
subcontract, license agreement, lease or other financial compensation
agreement, provided that the Contractor or Subcontractor was previously
hired by the covered employer to perform work in connection with such
contract, subcontract, license agreement, lease or other financial
compensation agreement and is continuing to perform such work.
A.
Any covered employer and the owners thereof, as the case may be, that establish that they have complied in good faith with the requirements of Title 8 U.S.C. § 1324a with respect to the hiring of covered employees and with respect to the alien and nationality status of the owners thereof, as the case may be, have established an affirmative defense that such covered employer and the owners thereof, as the case may be, have not violated § 59-3A(1) of this article with respect to such hiring and alien and nationality status of the owners thereof.
B.
Any contractor and subcontractor of a covered employer and the owners thereof, as the case may be, that establish that they have complied in good faith with the requirements of Title 8 U.S.C. § 1324a with respect to the hiring of covered employees and with respect to the alien and nationality status of the owners thereof, as the case may be, have established an affirmative defense that such contractor and subcontractor of the covered employer and the owners thereof, as the case may be, have not violated § 59-3B(1) of this article with respect to such hiring and alien and nationality status of the owners thereof.
A.
All covered employers and the owners thereof, as the case may be, shall verify that they have complied with the requirements of § 59-3 of this article based upon the categories of records, set forth below, copies of which shall be maintained by the covered employer to evidence compliance with this article:
(1)
United States passport;
(2)
Resident alien card or alien registration card;
(3)
Driver's license, if it contains a photograph of the individual;
and a social security account number card (other than such a card
which specifies on its face that the issuance of the card does not
authorize employment in the United States);
(4)
Employment authorization documents, such as an H-1B visa, H-2B visa,
and L-1 visa, or such other work visa as may be authorized by the
United States Government at the time the Town contract is awarded
for all covered employees; or
(5)
Birth certificate indicating that person was born in the United States.
B.
The documents reviewed and relied upon by the covered employer, or
the owners thereof, as the case may be, must appear on their face
to be genuine. Copies of such documents relied upon by the covered
employer, or the owners thereof, as the case may be, shall be maintained
by the covered employer for all covered employees for the periods
set forth below.
C.
Such records shall be maintained by the covered employer, or owners
thereof, for the following minimum periods of time:
(1)
One year for a tax incentive;
(2)
Two years for a Town grant, subsidy or other financial assistance;
(3)
Until such time the IDA loan is paid back in full; and
(4)
Six years after the Town contract, subcontract, license agreement,
lease or other financial compensation agreement either expires or
is terminated.
D.
Authorized Town employees shall be entitled to review such records
on a periodic basis as requested by the Town or awarding agency.
E.
The Town shall ensure that employees reviewing such records are briefed
by Town Counsel in order to ensure that such audits are done in compliance
with all applicable law. Procedures should be adopted by the Town
to ensure that such audits are not discriminatory and to ensure that
sensitive personal information is not released unlawfully.
A.
No grant, loan, subsidy, tax incentive, funding, appropriation, payment, other financial assistance, contract, subcontract, license agreement, lease or other financial compensation agreement shall be awarded to a covered employer, or the owners thereof, as the case may be, that does not certify that it has complied with Title 8 U.S.C. § 1324a and §§ 59-3 and 59-5 of this article, with respect to its covered employees or with respect to the alien and nationality status of the owners thereof, as the case may be. All Town contracts, subcontracts, license agreements, leases and other financial compensation agreements awarded shall set forth the obligations of the covered employer and owners as enumerated in this article.
B.
All covered employers, or the owners thereof, as the case may be,
shall inform their contractors and subcontractors to comply with the
provisions of this article for as long as the covered employer or
owner, as the case may be, is in receipt of compensation. Language
indicating the contractor's and subcontractor's requirement
to comply shall be included in any contract or agreement between a
covered employer and its contractors and subcontractors. A copy of
such subcontracts or other agreements shall be submitted to the Town
and made available to the public upon request.
A.
This article shall apply to all actions occurring on or after June
1, 2008, and shall apply to:
(1)
All Town contracts, subcontracts, license agreements, leases and
other financial compensation agreements entered into or renewed after
the applicability date of this article;
(2)
Amendments to all Town contracts, subcontracts, license agreements,
leases and other financial compensation agreements entered into after
the applicability date of this article;
(3)
All loans, subsidies, tax incentives funding, appropriations, payments,
and other financial assistance provided by the Town after the applicability
date of this article; and
(4)
A covered employer, or the owners thereof, as the case may be, who
is constructing public works for the Town under a loan agreement and
pursuant to Town plans and specifications, even though the project
may not be 100% County funded due to federal and/or state aid that
may be available.
A.
Notwithstanding any provision of law to the contrary, any covered employer, or the owners thereof, as the case may be, who submits a false, fictitious or fraudulent affidavit to the Town or awarding agency in connection with § 59-3 or 59-6 of this article shall, upon conviction, be guilty of a Class A misdemeanor, punishable by a fine of not less than $250 nor more than $2,000, or up to six months imprisonment, or both. Each such violation shall constitute a separate and distinct offense.
B.
Notwithstanding any provision of law to the contrary, any covered employer, or the owners thereof, as the case may be, who violates any of the provisions of § 59-3 or 59-6 of this article, upon a first violation shall be subject to a civil penalty, in an amount not less than $250.00 nor more than $1,000.00, for each day such covered employee remains employed by the covered employer, or for each day the owners thereof shall remain an owner, as the case may be. Any covered employer, or the owners thereof, as the case may be, who violates any of the provisions of § 59-3 or 59-6 of this article as set forth herein within the period of one year immediately subsequent to the first violation, shall result in a second violation, the civil penalty of which shall be in an amount not less than $1,000 nor more than $2,500 for each day such covered employee remains employed by the covered employer, or for each day the owners thereof shall remain an owner, as the case may be. Each such violation shall constitute a separate and distinct offense.
C.
Notwithstanding any provision of law to the contrary, any covered employer, or the owners thereof, as the case may be, who violates the provisions of § 59-5 of this article shall be subject to a civil penalty, in an amount not less than $250 nor more than $2,000.
D.
Any covered employer, or the owners thereof, as the case may be, who violates the provisions of § 59-3, 59-5, or 59-6 of this article, more than two times, shall have its contract, subcontract, license agreement, lease or other financial compensation agreement terminated immediately; and, in the case of a Town IDA loan, subsidy or other form of financial assistance, same shall be declared in default for purposes of the Town collecting on the full amount of the loan, subsidy or other form of financial assistance. In addition, such covered employers shall be barred from bidding on future Town contracts and shall be ineligible to receive any future loans, subsidies or other financial assistance from the Town.
E.
Any determination made hereunder by the Town shall be reviewable
pursuant to Article 78 of the Civil Practice Law and Rules.
