HOUSE BILL NO. 2688 Offered January 10, 2007 Prefiled January 10, 2007 A BILL to amend and reenact §§ 65.2-805 and 65.2-806 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 65.2-804.1, relating to the liability for workers' compensation benefits paid to unauthorized aliens; penalties. ---------- Patrons-- Reid and Frederick ---------- Committee Referral Pending ----------

Be it enacted by the General Assembly of Virginia:

1.  That §§ 65.2-805 and 65.2-806 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 65.2-804.1 as follows:

§ 65.2-804.1. Liability for costs of benefits paid to unauthorized aliens.

A. For purposes of this section:

"Basic pilot program" means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L 104-208, Division C, § 403(a), 8 U.S.C. 1324a, operated by the United States Department of Homeland Security, or any other federal program designated for that purpose.

"Unauthorized alien" means an individual who is unauthorized to work in the United States as defined by federal or state law. 

B. Any employer who knowingly and willfully employs an unauthorized alien, and not an insurer of the employer's obligations to make payments of compensation to employees under this title, shall be liable for the payment of all benefits to which an unauthorized alien injured in the course of employment shall be entitled under this title. 

C. If an unauthorized alien who has established a bona fide eligibility for any disability payment under this title is, as of the date that such eligibility was established, inadmissible to the United States under federal immigration law, the payor of the disability benefits shall require the unauthorized alien to present himself in person at a bank or financial institution located within a foreign country as a condition for the receipt of any disability payment. If the unauthorized alien's disability prevents such an appearance, a legal representative of the alien may obtain disbursement of the payment on the alien’s behalf, during periods that the alien remains inadmissible to the United States.

D. Upon demand by a third party, including but not limited to an insurer of the employer's liability under this title, that is obligated to pay for medical or indemnity benefits under this title to an unauthorized alien on behalf of the employer, the employer shall reimburse the third party for all benefits paid by the third party to the unauthorized alien. If such payments are not reimbursed promptly by the employer, the third party shall be entitled to maintain a cause of action for reimbursement against the employer for such payments, in which proceeding the third party shall be entitled to recover all costs and attorney fees associated with the action.

E. This section shall not apply to an employer who, upon notice of a demand for payment of a workers’ compensation benefit under subsection B or demand for reimbursement by a third party payor under subsection D, demonstrates that prior to the date of injury, the employer had verified the work authorization status of the injured worker, through use of the Basic Pilot Program operated by the United States Department of Homeland Security.

§ 65.2-805. Civil penalty for violation of §§ 65.2-800, 65.2-803.1, 65.2-804, and 65.2-804.1.

A. If such employer fails to comply with the provisions of § 65.2-800 or 65.2-804, he shall be assessed a civil penalty of not less than $500 nor more than $5,000, and he shall be liable during continuance of such failure to any employee either for compensation under this title or at law in a suit instituted by the employee against such employer to recover damages for personal injury or death by accident, and in any such suit such employer shall not be permitted to defend upon any of the following grounds:

1. That the employee was negligent;

2. That the injury was caused by the negligence of a fellow employee; or

3. That the employee had assumed the risk of the injury.

B. Any person who fails to comply with the provisions of § 65.2-803.1 shall be assessed a civil penalty of not less than $500 nor more than $5,000 for each instance of noncompliance, in addition to any other penalties applicable under this title.

C. Any person who fails to comply with the provisions of § 65.2-804.1 shall be assessed a civil penalty of $25,000 for each instance of noncompliance, in addition to any other penalties applicable under this title. The assets of an employer may be seized to pay a civil penalty assessed pursuant to the provisions of this subsection.

D. The civil penalties herein provided may be assessed by the Commission in an open hearing with the right of review and appeal as in other cases. Upon a finding by the Commission of such failure to comply, and after 15 days' written notice thereof sent by certified mail to the employer, if such failure continues, the Commission may order the employer to cease and desist all business transactions and operations until found by the Commission to be in compliance with the provisions of this chapter.

DE. Any civil penalty assessed pursuant to this section shall be paid into the Uninsured Employer's Fund established in Chapter 12 (§ 65.2-1200 et seq.) of this title.

§ 65.2-806. Criminal penalties.

In addition to the civil penalties assessed pursuant to § 65.2-805, any employer who knowingly and intentionally fails to comply with the provisions of § 65.2-800 or, 65.2-804 or 65.2-804.1 is guilty of a Class 2 misdemeanor.

Venue for the prosecution hereof when there is an injury shall lie in the county or city wherein the injury occurred.

2.  That the provisions of § 65.2-804.1 of the Code of Virginia that are relevant to immigration and the classification of immigration status shall be construed and interpreted so as to be in conformity with federal immigration law. If a provision of this section or its application to any person or circumstance is held to be invalid, the invalidity shall not affect other provisions or applications of this section that can be given effect without the invalid provisions or applications.