THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY WARD, BREWSTER, SCARNATI, McILHINNEY, EICHELBERGER, D. WHITE, VOGEL, RAFFERTY, BRUBAKER, ORIE, FONTANA, ALLOWAY, GREENLEAF, WAUGH, ARGALL, PICCOLA AND WASHINGTON, FEBRUARY 24, 2011

SENATOR McILHINNEY, STATE GOVERNMENT, AS AMENDED, APRIL 6, 2011   

AN ACT

Amending Title 62 (Procurement) of the Pennsylvania Consolidated

Statutes, in contracts for public works, providing for

verification of the employment eligibility of all employees

for purposes of wage reporting and employment eligibility;

prescribing penalties; and establishing good faith immunity

under certain circumstances.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Chapter 39 of Title 62 of the Pennsylvania

Consolidated Statutes is amended by adding a subchapter to read:

SUBCHAPTER F

EMPLOYMENT VERIFICATION

Sec.

3951.  Scope of subchapter.

3952.  Definitions.

3953.  Verification.

3954.  Violations.

3955.  Enforcement and sanctions.

3956.  Protection from retaliation.

3957.  Good faith immunity.

§ 3951.  Scope of subchapter.

This subchapter relates to verification of employment on

certain public works projects.

§ 3952.  Definitions.

The following words and phrases when used in this subchapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Department."  The Department of Labor and Industry of the

Commonwealth.

"Employee."  An individual for whom a public works contractor

is required by law to file a Form W-2 with the Internal Revenue

Service.

"EVP."  The E-Verify Program operated by the Department of

Homeland Security that electronically verifies employment

eligibility for employees.

"INA."  The Immigration and Nationality Act (66 Stat. 163, 8

U.S.C. § 1101 et seq.).

"NVS."  The Social Security Number Verification Service

operated by the Social Security Administration.

"Public body."  The Commonwealth of Pennsylvania, any of its

political subdivisions, any authority created by the General

Assembly of the Commonwealth and any instrumentality or agency

of the Commonwealth.

"Public work."  Construction, reconstruction, demolition,

alteration and repair work other than maintenance work, done

under contract and paid for in whole or in part out of the funds

of a public body where the estimated cost of the total project

is in excess of $25,000. The term shall not include work

performed under a rehabilitation or manpower training program.

"Public works contractor."  A contractor that provides goods

or services under a contract involving a public works project.

"Public works project."  A project involving a public work.

"Secretary."  The Secretary of Labor and Industry of the

Commonwealth.

"Subcontractor."  A person, other than a natural person,

regardless of its tier, including, but not limited to, a

staffing agency, that performs work for a public works

contractor under a contract for a public work.

"Willful."  Action or conduct undertaken intentionally or

with reckless disregard for or deliberate ignorance of the

requirements and obligations established by this subchapter.

§ 3953.  Verification.

(a)    General rule.--As a precondition of being awarded a

contract for a public work, and prior to the execution of the

contract, a public works contractor shall provide the

Commonwealth agency with which the contract will be made a

verification statement in which it shall represent the

following:

(1)  The public works contractor has verified the

employment eligibility of all of its then-existing employees

for wage reporting purposes through NVS in accordance with

Federal law governing the use of NVS.

(2)  The public works contractor will verify the

employment eligibility of a new employee for employment

purposes prior to the commencement of work by the new

employee through EVP in accordance with Federal law governing

the use of EVP.

(3)  The public works contractor will provide the

Commonwealth agency with the verification statement required

under subsection (b) from each subcontractor it uses or

intends to use on the public works project prior to the

commencement of any work by the subcontractor on the public

works project.

(4)  The public works contractor will provide a

certification from the department verifying that the

contractor has not previously violated this subchapter.

(b)  Subcontractor verification statements.--Prior to the

execution of a subcontract with a public works contractor, a

subcontractor shall provide the public works contractor with a

verification statement containing substantially the same

information about the subcontractor as required under subsection

(a) about the public works contractor. The subcontractor shall

submit the verification statement to the contractor prior to the

commencement of any work by the subcontractor on the public

works project.

(c)  Form.--The verification statement required by this

section shall be on a form prescribed by the secretary and shall

comply with the following additional requirements:

(1)  The statement shall include a certification that the

information in the statement is true and correct and that the

person signing the statement understands that the submission

of false or misleading information in connection with the

verification shall subject the person and the public works

contractor or subcontractor, as the case may be, to sanctions

provided by law.

(2)  The statement shall be signed by a representative of

the public works contractor or subcontractor, as applicable,

who has sufficient knowledge and authority to make the

representations and certifications contained in the

statement.

(d)    Discrimination prohibited.--In conducting the employment

eligibility required by this section, a public works contractor

or its subcontractor shall not discriminate against any employee

on the basis of race, ethnicity, color or national origin.

§ 3954.  Violations.

The following shall constitute a violation of this

subchapter:

(1)  Employment by a public works contractor or

subcontractor of an employee whose employment eligibility has

not been verified by NVS or EVP as required by this

subchapter.

(2)  Use by a public works contractor of a subcontractor

on a public works project prior to the submission by the

subcontractor of a verification statement required by this

subchapter.

(3)  Commencement of work by a subcontractor on a public

works project prior to submitting to the public works

contractor a verification statement required by this

subchapter.

(4)  Making a false statement or misrepresentation in a

verification statement required by this subchapter.

§ 3955.  Enforcement and sanctions.

(a)    General rule.--The secretary shall enforce the

provisions of this subchapter.

(b)    Investigation of complaints.--The secretary shall

accept, review and investigate in a timely manner any credible

complaint that a public works contractor or subcontractor has

violated a provision of this subchapter.

(c)  Audits.--To ensure compliance with the requirements of

this subchapter, the secretary shall conduct complaint-based and

random audits of public works contractors and subcontractors in

this Commonwealth. In conducting such audits, the secretary

shall utilize NVS and EVP to verify the employment eligibility

of employees for wage reporting purposes and employment

eligibility, as appropriate, in accordance with Federal law

governing the use of NVS and EVP.

(d)  Sanctions.--The following sanctions shall apply to

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violations of section 724A of the INA (8 U.S.C. § 1324a) or of

this act:

(1)  A public works contractor or subcontractor that

violates section 724A of the INA or engages in violations

described in section 3954(1), (2) or (3) (relating to

violations):

(i)  For the first offense, the secretary may issue a

warning letter detailing the violation and post the

letter on the department's Internet website.

(ii)  At the discretion of the Commonwealth agency

with whom the public works contractor has contracted, may

be subject to termination of the contract by the

Commonwealth agency without recourse against or penalty

to the Commonwealth agency. The right of the Commonwealth

agency to terminate the contract under this subparagraph

may not be waived.

(iii)  At the discretion of the public works

contractor with whom the subcontractor has contracted,

may be subject to termination of the subcontract by the

public works contractor without recourse against or

penalty to the public works contractor. The right of the

public works contractor to terminate the subcontract

under this subparagraph may not be waived.

(2)  A public works contractor or subcontractor that

willfully violates section 724A 274A of the INA (8 U.S.C. §

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1324a) or willfully engages in violations described in

section 3954(1), (2) or (3):

(i)  At the discretion of the secretary, shall be

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subject to debarment under section 531 for one year.

(ii)  At the discretion of the Commonwealth agency

with which the public works contractor has contracted,

may be subject to termination of the contract by the

Commonwealth agency without recourse against or penalty

to the Commonwealth agency and a fine of up to $2,000.

The right of the Commonwealth agency to terminate the

contract under this subparagraph may not be waived.

(iii)  At the discretion of the public works

contractor with whom the subcontractor has contracted,

may be subject to termination of the subcontract by the

public works contractor without recourse against or

penalty to the public works contractor. The right of the

public works contractor to terminate the subcontract

under this subparagraph may not be waived.

(1)  For a first offense relating to the public contract,

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a warning letter may be issued by the secretary detailing the

violation. The letter shall be posted on the department's

Internet website.

(2)  For a second offense relating to the public

contract:

(i)  At the discretion of the Commonwealth agency

with which the public works contractor has contracted,

may be subject to termination of the contract by the

Commonwealth agency without recourse against or penalty

to the Commonwealth agency and a fine of up to $2,000.

The right of the Commonwealth agency to terminate the

contract under this subparagraph may not be waived.

(ii)  At the discretion of the public works

contractor with whom the subcontractor has contracted,

may be subject to termination of the subcontract by the

public works contractor without recourse against or

penalty to the public works contractor. The right of the

public works contractor to terminate the subcontract

under this subparagraph may not be waived.

(3)  For a third or subsequent offense relating to the

public contract, at the discretion of the secretary, in

addition to the sanctions in paragraph (2), shall be subject

to debarment under section 531 (relating to debarment or

suspension) for one year.

§ 3956.  Protection from retaliation.

(a)  General rule.--It shall be unlawful for a public works

contractor or subcontractor to discharge, threaten or otherwise

retaliate or discriminate against an employee regarding

compensation or other terms or conditions of employment because

the employee:

(1)  participates in an investigation, hearing or inquiry

held by the secretary or any other governmental authority

under this subchapter; or

(2)  reports or makes a complaint regarding the violation

of this subchapter to a public works contractor,

subcontractor or governmental authority.

(b)  Actions.--

(1)  Any employee who suffers retaliation or

discrimination in violation of this section may bring an

action in a court of common pleas in accordance with

established civil procedures of this Commonwealth.

(2)  The action must be brought within three years from

the date the employee knew of the retaliation or

discrimination.

(c)  Relief.--If an employee prevails in an action commenced

under this section, the employee shall be entitled to the

following relief:

(1)  Reinstatement of the employee, if applicable.

(2)  Restitution equal to three times the amount of the

employee's wages and fringe benefits calculated from the date

of the violation or discrimination.

(3)  Reasonable attorney fees and costs of the action.

(4)  Any other legal and equitable relief as the court

deems appropriate.

§ 3957.  Good faith immunity.

A public works contractor or subcontractor that relies in

good faith on NVS and EVP procedures to verify the employment

eligibility of employees shall be immune from the sanctions

authorized under section 3955 (relating to enforcement and

sanctions) in the event that incorrect information has been

provided to the public works contractor or subcontractor.

Section 2.  This act shall take effect in 60 days.