A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ENACTING THE "ELIMINATE ILLEGAL IMMIGRATION WHISTLEBLOWER ACT" BY ADDING SECTION 41-8-75 SO AS TO PROVIDE PENALTIES FOR THE EMPLOYMENT OF UNAUTHORIZED ALIENS INCLUDING CIVIL PENALTIES SUPPLEMENTAL TO EXISTING PENALTIES, TO PROVIDE A CIVIL ENFORCEMENT PROCESS WITH WHISTLEBLOWER PROCEDURES, AND TO CLARIFY CUMULATIVE REMEDIES AND CONCURRENT ENFORCEMENT BY THE DEPARTMENT OF LABOR, LICENSING AND REGULATION.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  This act may be cited as the "Eliminate Illegal Immigration Whistleblower Act."

 

SECTION 2.  Chapter 8, Title 41 of the S.C. Code is amended by adding:

 

    Section 41-8-75. (A) For purposes of this section:

       (1) "Relator" means a private person who brings a civil action on behalf of the State pursuant to subsection (C). The State is the real party in interest in an action brought under this section.

       (2) "Knowingly" has the same meaning as provided under federal law governing the employment of unauthorized aliens and includes actual knowledge, deliberate ignorance, or reckless disregard of the employment authorization status of an individual.

       (3) "Unauthorized alien" means an individual who is not authorized for employment in the United States as determined under federal law.

       (4) "Economic benefit" means a direct or indirect financial advantage obtained by an employer as a result of employing an unauthorized alien, including wage savings and avoided employment-related taxes, insurance contributions, or withholdings.

    (B)(1) An employer who knowingly employs or continues to employ an unauthorized alien, as determined under federal law governing employment authorization verification, is subject to the following civil penalties and remedies:

           (a) civil monetary penalties in the following amounts:

               (i) for a first violation, not less than five thousand dollars nor more than fifteen thousand dollars for each unauthorized alien with respect to whom the violation occurred; and

               (ii) for a second or subsequent violation, not less than fifteen thousand dollars nor more than thirty thousand dollars for each unauthorized alien with respect to whom the violation occurred.

           (b) In addition to the civil monetary penalty, the employer is liable for an amount equal to three times the economic benefit obtained by the employer as a direct result of the unlawful employment.

       (2) Each unauthorized alien employed in violation of this chapter constitutes a separate violation.

       (3) The court may order that an employer found liable under this section be ineligible for state contracts, grants, loans, tax credits, or other state-funded economic incentives for a period not to exceed five years.

    (C)(1) A relator may bring a civil action for a violation of this section on behalf of the State.

       (2) The complaint must be filed under seal and remain under seal for at least sixty days. The complaint may not be served on the defendant until the court so orders.

       (3) The relator shall serve on the Attorney General a copy of the complaint and a written disclosure of substantially all material evidence and information in the relator's possession.

       (4) Within sixty days after receipt of the complaint and disclosure, or within any additional time allowed by the court for good cause, the Attorney General may elect to intervene and proceed with the action on behalf of the State.

       (5) If the State intervenes, it has primary responsibility for prosecuting the action. If the State declines to intervene, the relator may proceed with the action on behalf of the State.

       (6) A relator who brings a civil action under this section is entitled to reasonable costs and attorney's fees from any settlement of the action or any other proceeds from the action, regardless of whether the State proceeds with the action or the relator conducts the action.

       (7) When a person brings an action under this subsection, no person other than the State may intervene or bring a related action based on the facts underlying the pending action.

       (8)(a) The court shall dismiss an action or claim under this subsection, unless opposed by the State, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed:

               (i) in a federal, state, or local criminal, civil, or administrative hearing in which the State or its agent is a party;

               (ii) in a report, hearing, audit, or investigation conducted by a federal, state, or local governmental entity; or

               (iii) in the news media.

           (b) The court shall not dismiss an action under this item if the relator is an original source of the information. For purposes of this item, "original source" means an individual who either:

               (i) prior to a public disclosure under subitem (a), voluntarily disclosed to the State the information on which the allegations or transactions in a claim are based; or

               (ii) has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the State before filing an action under this section.

       (9) An action under this subsection may not be brought more than six years after the date of the violation.

    (D)(1) Whenever the Attorney General has reason to believe that a person may be in possession, custody, or control of documentary material or information relevant to an investigation of a violation of this section, the Attorney General may, before commencing a civil proceeding under this section or during the period in which a complaint is filed under seal pursuant to subsection (C)(2) and during any extension thereof granted pursuant to subsection (C)(4), issue in writing and cause to be served upon such person a civil investigative demand requiring such person:

           (a) to produce documentary material for inspection and copying;

           (b) to answer in writing written interrogatories;

           (c) to give oral testimony; or

           (d) to furnish any combination of (a), (b), and (c).

       (2) The authority provided in this subsection includes the power to issue and enforce civil investigative demands during the sixty-day seal period described in subsection (C)(2), and during any extension thereof granted pursuant to subsection (C)(4), for the purpose of determining whether the State shall intervene.

       (3) Each civil investigative demand must:

           (a) state the nature of the conduct constituting the alleged violation under investigation;

           (b) describe the material or testimony sought with reasonable specificity;

           (c) prescribe a reasonable return date; and

           (d) identify the custodian to whom the material must be made available.

       (4) If a person fails to comply with a civil investigative demand, the Attorney General may file an action in the circuit court in the county in which the business maintains its principal place of business in this State or, if none, in which the business conducts business, to enforce the demand. The court may issue an order requiring compliance, and failure to obey such an order may be punished as contempt of court.

       (5) Within twenty days after service of a civil investigative demand, or before the return date specified in the demand, whichever period is shorter, the person served may file a petition in the circuit court in the county in which the business maintains its principal place of business in this State or, if none, in which the business conducts business, for an order modifying or setting aside the demand. The court may modify or set aside the demand if it finds that the demand does not comply with this subsection or is unreasonable or oppressive.

       (6) Materials obtained pursuant to this subsection must be maintained in confidence by the Attorney General and may be used in connection with any civil action brought under this section, including for purposes of determining whether to intervene.

    (E) The remedies provided in this section are civil in nature and are in addition to the probation, suspension, revocation, and other sanctions provided in Section 41-8-50. Nothing in this section limits or otherwise affects the authority or duties set forth in Section 41-8-50.

    (F) This section must be construed consistently with federal law governing employment authorization. Liability under this section must be based on a determination of unauthorized employment as required by federal employment authorization verification requirements.

    (G) Nothing in this section may be construed to limit or impair the authority of the Department of Labor, Licensing and Regulation to investigate and enforce violations of this chapter pursuant to Section 41-8-50. The remedies provided in this section are in addition to administrative remedies available under Section 41-8-50. A court may not award duplicative recovery for the same violation.

 

SECTION 3.  This act takes effect upon approval by the Governor.

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