South Carolina Code 41-8-50. Violations; investigations; suspension and revocation of license
(B) If, after completing the investigation, and after reviewing any information or evidence submitted by the private employer demonstrating compliance with the provisions of this chapter, the director determines that substantial evidence exists to support a finding that the private employer has committed a violation of § 41-8-20 or § 41-8-30, the director shall:
Terms Used In South Carolina Code 41-8-50
- Agency: means any agency, department, board, commission, or political subdivision of this State that issues licenses for the purposes of operating a business in this State. See South Carolina Code 41-8-10
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Director: means the Director of the Department of Labor, Licensing and Regulation or the director's designee. See South Carolina Code 41-8-10
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
- License: means an agency permit, certificate, approval, registration, charter, or similar form of authorization that is required by law and that is issued by any agency or political subdivision of this State for the purpose of operating a business in this State, excluding professional licenses, but including employment licenses, articles of organization, articles of incorporation, a certificate of partnership, a partnership registration, a certificate to transact business, or similar forms of authorization issued by the South Carolina Secretary of State, and any transaction privilege tax license. See South Carolina Code 41-8-10
- Political subdivision: includes counties, cities, towns, villages, townships, districts, authorities, and other public corporations and entities whether organized and existing under charter or general law. See South Carolina Code 41-8-10
- Private employer: means any:
(1) person or entity that transacts business in this State, is required to have a license issued by an agency, department, board, commission, or political subdivision of this State that issues licenses for the purposes of operating a business in this State, and employs one or more employees in this State, as defined in § 12-8-10;
(2) person or entity carrying on any employment and the legal representative of a deceased person or the receiver or trustee of any person; or
(3) person or entity for whom an individual performs a service or sells a good, of whatever nature, as an employee, as defined in § 12-8-10. See South Carolina Code 41-8-10 - Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
- Unauthorized alien: means an unauthorized alien as defined by 8 U. See South Carolina Code 41-8-10
(1) notify the United States Immigration and Customs Enforcement of suspected unauthorized aliens employed by the private employer;
(2) notify state and local law enforcement agencies responsible for enforcing state immigration laws of the employment of suspected unauthorized aliens by the employer; and
(3) take appropriate action in accordance with subsection (D) of this section.
(C) The director must not bring an action against a private employer for any employee who has been employed for three business days or less at the time of the director’s inspection or random audit. A second occurrence involving a violation of this section must be based only on an employee who is employed by the private employer after a first action has been brought for a violation of § 41-8-20 or § 41-8-30.
(D) Upon a finding of an occurrence involving a violation after an investigation pursuant to subsection (A), or after a random audit pursuant to § 41-8-120(B), where the director considered all information or evidence gathered by the director and any information or evidence submitted by the private employer demonstrating compliance with the provisions of this chapter:
(1)(a) prior to July 1, 2012, for a first occurrence involving a violation of § 41-8-20, the private employer shall, upon notification by the director of a violation of § 41-8-20, swear or affirm in writing that the private employer has complied with the provisions of 8 U.S.C. § 1324a from the effective date of this section to the time the private employer received notification from the director, and shall comply with the provisions of § 41-8-20 within three business days. Failure to swear or affirm compliance in writing or failure to comply with § 41-8-20 within three business days requires that the private employer be placed on probation for a period of one year, during which time the private employer shall submit quarterly reports to the director demonstrating compliance with the provisions of § 41-8-20. The director shall provide appropriate assistance to the private employer to aid the private employer in complying with § 41-8-20 within the three business day period. The director may extend the three business day period, as necessary, if the director determines that more time is required for compliance. Any subsequent occurrence involving a violation of § 41-8-20 by the private employer must result in the suspension of the private employer’s licenses for at least ten days, but not more than thirty days, by the director, except, if a private employer has not committed a violation of § 41-8-20 within the previous three years, a subsequent occurrence must be treated as a first occurrence. If a private employer has ever committed a violation of § 41-8-30, the private employer’s licenses must be suspended for at least ten days but not more than thirty days for any violation or subsequent occurrence involving a violation of § 41-8-20. The director shall verify the work authorization status of the employees with the federal government pursuant to 8 U.S.C. § 1373(c) and notify the private employer of the results. The private employer shall immediately terminate an employee whose work authorization was not verified upon being notified by the director. The director shall notify federal, state, and local law enforcement officials of any suspected unauthorized aliens employed by the private employer;
(b) on or after July 1, 2012, for a first occurrence involving a violation of § 41-8-20, the private employer shall, upon notification by the director of a violation of § 41-8-20, immediately comply with the provisions of § 41-8-20, and the private employer must be placed on probation for a period of one year, during which time the private employer shall submit quarterly reports to the director demonstrating compliance with the provisions of § 41-8-20. Any subsequent occurrence involving a violation of § 41-8-20 by the private employer must result in the suspension of the private employer’s licenses for at least ten days but not more than thirty days by the director, except, if a private employer has not committed a violation of § 41-8-20 within the previous three years, a subsequent occurrence must be treated as a first occurrence. If a private employer has ever committed a violation of § 41-8-30, the private employer’s licenses must be suspended for at least ten days but not more than thirty days for any violation or subsequent occurrence involving a violation of § 41-8-20. The director shall verify the work authorization status of the employees with the federal government pursuant to 8 U.S.C. § 1373(c) and notify the private employer of the results. The private employer shall immediately terminate an employee whose work authorization was not verified upon being notified by the director. The director shall notify federal, state, and local law enforcement officials of any suspected unauthorized aliens employed by the private employer;
(2) for a first occurrence involving a violation of § 41-8-30, the private employer’s licenses must be suspended, and must remain suspended for at least ten days but not more than thirty days. During the period of suspension, the private employer may not engage in business, open to the public, employ an employee, or otherwise operate. After the period of suspension, the private employer’s licenses must be reinstated, permitting the private employer to engage in business and to employ an employee, if the private employer:
(a) demonstrates that the private employer has terminated the unauthorized alien; and
(b) pays a reinstatement fee equal to the cost of investigating and enforcing the matter, provided that the reinstatement fee must not exceed one thousand dollars;
(3) for a second occurrence involving a violation of § 41-8-30, the private employer’s licenses must be suspended, and must remain suspended for at least thirty days but not more than sixty days. During the period of suspension, the private employer may not engage in business, open to the public, employ an employee, or otherwise operate. After the period of suspension, the private employer’s licenses must be reinstated, permitting the private employer to engage in business, open to the public, employ an employee, and otherwise operate, if the private employer:
(a) demonstrates that the private employer has terminated the unauthorized alien; and
(b) pays a reinstatement fee equal to the cost of investigating and enforcing the matter, provided that the reinstatement fee must not exceed one thousand dollars;
(4) for a third or subsequent occurrence involving a violation of § 41-8-30, the private employer’s licenses must be revoked, and the private employer may not engage in business, open to the public, employ an employee, or otherwise operate. For a third occurrence only, after ninety days, a private employer may petition the director for a provisional license. A provisional license permits a private employer to engage in business, open to the public, employ an employee, and otherwise operate. The director may grant the private employer permission to apply for a provisional license if the private employer:
(a) agrees to be on probation for a period of three years, during which time the private employer shall submit quarterly reports to the director demonstrating compliance with the provisions of §§ 41-8-20 and 41-8-30;
(b) demonstrates that the private employer has terminated the unauthorized alien; and
(c) pays a reinstatement fee equal to the cost of investigating and enforcing the matter, provided that the reinstatement fee must not exceed one thousand dollars.
For all other occurrences where a private employer’s licenses are revoked, the private employer may not seek reinstatement of the private employer’s licenses for a period of five years. After five years, the director may grant reinstatement of a private employer’s licenses if the private employer:
(a) agrees to be on probation for a period of three years, during which time the private employer shall submit quarterly reports to the director demonstrating compliance with the provisions of §§ 41-8-20 and 41-8-30;
(b) demonstrates that the private employer has terminated the unauthorized alien; and
(c) pays a reinstatement fee equal to the cost of investigating and adjudicating the matter, provided that the reinstatement fee must not exceed one thousand dollars.
(5) If a private employer engages in business or employs a new employee during the period that the private employer’s licenses are suspended, the private employer’s licenses must be revoked, and must not be reinstated for a period of five years, and only upon a determination by the director that the private employer has complied with the provisions of item (4) of this subsection.
(E) For purposes of this chapter, it shall be a separate violation each time the private employer fails to verify the immigration status of a new employee as required by § 41-8-20.
(F) In taking any disciplinary action for a violation of § 41-8-20 or § 41-8-30, the director shall base the director’s determination on any evidence or information collected during the investigation or submitted for consideration by the employer, and shall consider the following factors, if relevant:
(1) the number of employees for whom the private employer has failed to verify their immigration status;
(2) the prior violations of this chapter by the private employer;
(3) the size of the private employer’s workforce;
(4) any actions taken by the private employer to comply with federal immigration laws or with the provisions of this chapter;
(5) any actions taken by the private employer subsequent to the inspection or random audit to comply with the provisions of this chapter;
(6) the duration of the violation;
(7) the degree of the violation; and
(8) the good faith of the private employer.
(G) Reinstatement fees assessed in accordance with this section must be used to cover the administrative costs of implementing, investigating, and enforcing the provisions of this chapter.
(H) The director shall maintain a list of all private employers who have had their licenses disciplined pursuant to this chapter and shall publish the list on the agency‘s website. The director shall remove a private employer from the list who has committed only a first occurrence pursuant to § 41-8-20 six months after the private employer’s name has been published, if the private employer has not subsequently had their licenses disciplined pursuant to this chapter within the one year probation period.
(I) If a private employer continues to engage in business after the private employer’s licenses have been revoked pursuant to this chapter, the director must seek an injunction from the Administrative Law Court to enjoin the private employer from continuing to operate the private employer’s business for which the private employer’s licenses were revoked or from employing new employees.
(J) The director shall notify the applicable licensing agency or political subdivision if the director determines that a private employer’s license must be suspended or revoked pursuant to this section. The applicable agency or political subdivision immediately shall suspend or revoke the private employer’s license.
(K) A license suspension or revocation pursuant to this section:
(1) does not constitute a dissolution, liquidation, or a winding down process; or a transfer, or other taxable event for tax purposes, including, but not limited to, taxes imposed or authorized by Title 12; and
(2) does not affect protections against personal liability provided in Title 33.