Higher Wages for American Workers Act of 2021

II 117TH CONGRESS 1ST SESSION S. 478 To gradually raise the Federal minimum wage, to permanently establish the E-Verify employment eligibility verification system, to mandate the use of E-Verify by all employers, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 25, 2021 Mr. COTTON (for himself, Mr. ROMNEY, Ms. COLLINS, Mrs. CAPITO, and Mr. PORTMAN) introduced the following bill; which was read twice and re- ferred to the Committee on the Judiciary A BILL To gradually raise the Federal minimum wage, to perma- nently establish the E-Verify employment eligibility verification system, to mandate the use of E-Verify by all employers, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Higher Wages for American Workers Act of 2021’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. VerDate Sep 11 2014 23:52 Mar 19, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S478.IS S478 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 478 IS Sec. 2. Findings. Sec. 3. Purpose. Sec. 4. Minimum wage increases. Sec. 5. Establishment of permanent E-Verify program. Sec. 6. Mandatory E-Verify for all employers. Sec. 7. Penalty for failure to use E-Verify. Sec. 8. Enhanced penalties for unauthorized employment. Sec. 9. E-Verify self-check. Sec. 10. E-Verify process. Sec. 11. Good faith defense. Sec. 12. Preemption. Sec. 13. Access to information. Sec. 14. Fraud and misuse of documents. Sec. 15. Fraud prevention. Sec. 16. Protection of Social Security Administration programs. Sec. 17. Inspector General audits. Sec. 18. Recruitment, referral, and continuation of employment. Sec. 19. Definitions. SEC. 2. FINDINGS. 1 Congress finds the following: 2 (1) In the Illegal Immigration Reform and Im- 3 migrant Responsibility Act of 1996 (division C of 4 Public Law 104–208), Congress directed the estab- 5 lishment of 3 pilot programs for employment eligi- 6 bility confirmation, including what became the E- 7 Verify Pilot Program. 8 (2) The E-Verify Pilot Program has grown into 9 a successful, necessary tool for employers across the 10 country that want to verify their workers’ employ- 11 ment eligibility. 12 (3) E-Verify is a fast, reliable, electronic sys- 13 tem, administered by the Department of Homeland 14 Security, that offers United States employers a tool 15 to verify that prospective employees are legally au- 16 thorized to work in the United States. 17 VerDate Sep 11 2014 23:52 Mar 19, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S478.IS S478 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 478 IS (4) All Federal executive departments and legis- 1 lative branch offices, employers subject to certain 2 court orders under section 274A(e)(4) or 274B(g) of 3 the Immigration and Nationality Act (8 U.S.C. 4 1324a(e)(4) and 1324b(g)), employers with Federal 5 contracts or subcontracts that contain the Federal 6 Acquisition Regulation E-Verify clause, and employ- 7 ers in several States are required to use E-Verify to 8 confirm the identity and employment eligibility of 9 their employees. 10 (5) Many other employers voluntarily use E- 11 Verify to confirm that their workforce complies with 12 Federal immigration laws. In December 2020, 13 1,102,643 employers were using E-Verify. 14 (6) It is necessary to make E-Verify permanent 15 and mandatory to prevent unauthorized employment, 16 which— 17 (A) drives illegal immigration to the 18 United States; and 19 (B) undermines economic opportunity for 20 authorized workers. 21 SEC. 3. PURPOSES. 22 The purposes of this Act are— 23 (1) to gradually increase the Federal minimum 24 wage; 25 VerDate Sep 11 2014 23:52 Mar 19, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S478.IS S478 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 478 IS (2) to provide a permanent authorization for E- 1 Verify; and 2 (3) to require all employers to use E-Verify. 3 SEC. 4. MINIMUM WAGE INCREASES. 4 (a) SCHEDULED INCREASES.—Section 6(a) of the 5 Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)) is 6 amended— 7 (1) by striking paragraph (1) and inserting the 8 following: 9 ‘‘(1) except as otherwise provided in this sec- 10 tion, not less than— 11 ‘‘(A) $8.00 per hour, beginning on the ef- 12 fective date under section 4(e) of the Higher 13 Wages for American Workers Act of 2021; 14 ‘‘(B) $8.75 per hour, beginning on the 15 date that is 1 year after such effective date; 16 ‘‘(C) $9.50 per hour, beginning on the date 17 that is 2 years after such effective date; 18 ‘‘(D) $10.00 per hour, beginning on the 19 date that is 3 years after such effective date; 20 and 21 ‘‘(E) beginning on the date that is 5 years 22 after such effective date, and every 2 years 23 thereafter, the amount determined by the Sec- 24 VerDate Sep 11 2014 23:52 Mar 19, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S478.IS S478 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 478 IS retary for purposes of this subsection under 1 subsection (h);’’; 2 (2) in paragraph (3), by striking ‘‘or’’ after the 3 semicolon; 4 (3) by redesignating paragraph (4) as para- 5 graph (5); and 6 (4) by inserting after paragraph (3) the fol- 7 lowing: 8 ‘‘(4) if such employee is employed by a business 9 with fewer than 20 employees (including a franchise 10 with fewer than 20 employees) and except as other- 11 wise provided under paragraphs (2), (3), or (5), not 12 less than— 13 ‘‘(A) $7.75 per hour, beginning on the ef- 14 fective date under section 4(e) of the Higher 15 Wages for American Workers Act of 2021; 16 ‘‘(B) $8.25 per hour, beginning on the 17 date that is 1 year after such effective date; 18 ‘‘(C) $8.75 per hour, beginning on the date 19 that is 2 years after such effective date; 20 ‘‘(D) $9.25 per hour, beginning on the 21 date that is 3 years after such effective date; 22 ‘‘(E) $9.75 per hour, beginning on the 23 date that is 4 years after such effective date; 24 and 25 VerDate Sep 11 2014 23:52 Mar 19, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S478.IS S478 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 478 IS ‘‘(F) beginning on the date that is 5 years 1 after such effective date, the wage rate in effect 2 under paragraph (1)(E); or’’. 3 (b) INCREASES IN YOUTH MINIMUM WAGE.—Section 4 6(g)(1) of the Fair Labor Standards Act of 1938 (29 5 U.S.C. 206(g)(1)) is amended— 6 (1) by striking ‘‘90’’ and inserting ‘‘180’’; and 7 (2) by striking ‘‘less than $4.25 an hour.’’ and 8 inserting the following: ‘‘less than— 9 ‘‘(A) $4.75 per hour, beginning on the effective 10 date under section 4(e) of the Higher Wages for 11 American Workers Act of 2021; 12 ‘‘(B) $5.25 per hour, beginning on the date 13 that is 1 year after such effective date; 14 ‘‘(C) $5.75 per hour, beginning on the date that 15 is 2 years after such effective date; and 16 ‘‘(D) $6.00 per hour, beginning on the date 17 that is 3 years after such effective date; and 18 ‘‘(E) beginning on the date that is 5 years after 19 such effective date, and every 2 years thereafter, the 20 youth minimum wage rate amount determined by 21 the Secretary for purposes of this subsection under 22 subsection (h).’’. 23 (c) DETERMINATION BASED ON INCREASE IN THE 24 CONSUMER PRICE INDEX.—Section 6 of the Fair Labor 25 VerDate Sep 11 2014 23:52 Mar 19, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S478.IS S478 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 478 IS Standards Act of 1938, as amended by subsections (a) and 1 (b), is further amended by adding at the end the following: 2 ‘‘(h)(1) Not later than the date that is 1 year before 3 a new minimum wage rate under subsection (a)(1)(E) and 4 new youth minimum wage rate under subsection (g)(1)(E) 5 are to take effect for a 2-year period, the Secretary shall 6 determine the minimum wage rate and youth minimum 7 wage rate to be in effect pursuant to this subsection. The 8 minimum wage rate or youth minimum wage rate deter- 9 mined pursuant to this subsection shall be— 10 ‘‘(A) not less than the amount in effect under 11 subsection (a)(1) or subsection (g)(1), respectively, 12 on the date of such determination; 13 ‘‘(B) increased from such amount by the per- 14 centage increase in the Chained Consumer Price 15 Index for All Urban Consumers (as published by the 16 Bureau of Labor Statistics of the Department of 17 Labor) for the preceding 2 years, as calculated in 18 accordance with paragraph (2); and 19 ‘‘(C) rounded to the nearest multiple of $0.05. 20 ‘‘(2) In making each determination under paragraph 21 (1) and calculating the percentage increase in the Chained 22 Consumer Price Index for All Urban Consumers under 23 paragraph (1)(B), the Secretary shall compare the Con- 24 sumer Price Index for the most recent month, quarter, or 25 VerDate Sep 11 2014 23:52 Mar 19, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S478.IS S478 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 478 IS year available (as selected by the Secretary before the first 1 year for which a minimum wage or youth minimum wage 2 is in effect pursuant to this subsection) with the Consumer 3 Price Index for the same month in the second preceding 4 year, the same quarter in the second preceding year, or 5 the second preceding year, respectively.’’. 6 (d) RULE OF CONSTRUCTION.—Nothing in the 7 amendments made by this Act shall be construed to im- 8 pact or affect the Secretary’s authority to issue special 9 certificates under section 14(c) of the Fair Labor Stand- 10 ards Act of 1938 (29 U.S.C. 214(c)). 11 (e) EFFECTIVE DATE.—The amendments made by 12 this section shall take effect on the later of— 13 (1) January 1, 2022; or 14 (2) the date that is 90 days after the national 15 emergency declaration issued by the President under 16 the National Emergencies Act (50 U.S.C. 1601 et 17 seq.) with respect to COVID–19 is rescinded. 18 SEC. 5. ESTABLISHMENT OF PERMANENT E-VERIFY. 19 (a) ESTABLISHMENT OF PERMANENT E-VERIFY.— 20 Section 274A(d) of the Immigration and Nationality Act 21 (8 U.S.C. 1324a(d)) is amended to read as follows: 22 ‘‘(d) ESTABLISHMENT OF PERMANENT E-VERIFY.— 23 ‘‘(1) IN GENERAL.—On the date of the enact- 24 ment of the Higher Wages for American Workers 25 VerDate Sep 11 2014 23:52 Mar 19, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S478.IS S478 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 478 IS Act of 2021, the Secretary of Homeland Security 1 shall permanently establish E-Verify, based on the 2 E-Verify pilot program implemented under section 3 401(c)(1) of the Illegal Immigration Reform and Im- 4 migrant Responsibility Act of 1996 (8 U.S.C. 1324a 5 note), that— 6 ‘‘(A) responds to inquiries made by per- 7 sons through a website, mobile application, or 8 other toll-free electronic media, as determined 9 by the Secretary, concerning— 10 ‘‘(i) an individual’s identity; and 11 ‘‘(ii) whether such individual is au- 12 thorized to be employed in the United 13 States; and 14 ‘‘(B) maintains records of— 15 ‘‘(i) the inquiries that were made; 16 ‘‘(ii) the verifications that were pro- 17 vided (or not provided); and 18 ‘‘(iii) the codes provided to inquirers 19 as evidence of their compliance with their 20 obligations under E-Verify. 21 ‘‘(2) RESPONSES.— 22 ‘‘(A) INITIAL RESPONSES.—E-Verify shall 23 provide confirmation or a tentative noncon- 24 firmation of an individual’s identity and em- 25 VerDate Sep 11 2014 23:52 Mar 19, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S478.IS S478 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 478 IS ployment eligibility not later than 3 business 1 days after the initial inquiry. If providing con- 2 firmation or tentative nonconfirmation, E- 3 Verify shall provide an appropriate code indi- 4 cating such confirmation or such nonconfirma- 5 tion. 6 ‘‘(B) SECONDARY CONFIRMATION PROCESS 7 IN CASE OF TENTATIVE NONCONFIRMATION.— 8 ‘‘(i) IN GENERAL.—In cases of ten- 9 tative nonconfirmation, the Secretary shall 10 specify, in consultation with the Commis- 11 sioner of Social Security, an available sec- 12 ondary verification process to confirm the 13 validity of information provided and to 14 provide a final confirmation or noncon- 15 firmation not later than 10 business days 16 after the date on which the notice of the 17 tentative nonconfirmation is provided by 18 the Secretary. 19 ‘‘(ii) EXTENSIONS.—The Secretary, in 20 consultation with the Commissioner— 21 ‘‘(I) may extend the deadline 22 under clause (i) once, on a case-by- 23 case basis, for a period of 10 business 24 days; and 25 VerDate Sep 11 2014 23:52 Mar 19, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S478.IS S478 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 478 IS ‘‘(II) if such deadline is extended, 1 shall document such extension within 2 the verification system. 3 ‘‘(iii) NOTIFICATIONS.—The Sec- 4 retary, in consultation with the Commis- 5 sioner, shall immediately notify the em- 6 ployee and employer of any tentative non- 7 confirmation under clause (i), which shall 8 include— 9 ‘‘(I) guidance to the prospective 10 employee regarding the secondary 11 verification process; and 12 ‘‘(II) any extension granted 13 under clause (ii). 14 ‘‘(iv) PROCESS.—The Secretary, in 15 consultation with the Commissioner, 16 shall— 17 ‘‘(I) create a standard process for 18 extensions and notifications under this 19 paragraph; and 20 ‘‘(II) make a description of such 21 process available to the public. 22 ‘‘(v) CODE.—When final confirmation 23 or nonconfirmation is provided, the 24 verification system shall provide an appro- 25 VerDate Sep 11 2014 23:52 Mar 19, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S478.IS S478 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 478 IS priate code indicating such confirmation or 1 nonconfirmation. 2 ‘‘(3) DESIGN AND OPERATION OF E-VERIFY.— 3 E-Verify shall be designed and operated— 4 ‘‘(A) to maximize its reliability and ease of 5 use by persons and other entities consistent 6 with insulating and protecting the privacy and 7 security of the underlying information; 8 ‘‘(B) to respond to all inquiries made by 9 such persons and entities on whether individ- 10 uals are authorized to be employed and to reg- 11 ister all times when such inquiries are not re- 12 ceived; 13 ‘‘(C) to prevent unauthorized disclosure of 14 personal information through appropriate ad- 15 ministrative, technical, and physical safeguards; 16 ‘‘(D) to include reasonable safeguards 17 against unlawful discriminatory practices based 18 on national origin o [Text truncated for display. 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