| HOUSE AMENDED |
| PRIOR PRINTER'S NOS. 645, 992, 1242 | PRINTER'S NO. 1745 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY WARD, BREWSTER, SCARNATI, McILHINNEY, EICHELBERGER, D. WHITE, VOGEL, RAFFERTY, BRUBAKER, ORIE, FONTANA, ALLOWAY, GREENLEAF, WAUGH, ARGALL, PICCOLA AND WASHINGTON, FEBRUARY 24, 2011 |
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| AS REPORTED FROM COMMITTEE ON STATE GOVERNMENT, HOUSE OF REPRESENTATIVES, AS AMENDED, NOVEMBER 1, 2011 |
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| AN ACT |
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1 | Amending Title 62 (Procurement) of the Pennsylvania Consolidated |
2 | Statutes, in contracts for public works, providing for |
3 | verification of the employment eligibility of all employees |
4 | for purposes of wage reporting and employment eligibility; |
5 | and prescribing penalties; and establishing good faith | <-- |
6 | immunity under certain circumstances. |
7 | The General Assembly of the Commonwealth of Pennsylvania |
8 | hereby enacts as follows: |
9 | Section 1. Chapter 39 of Title 62 of the Pennsylvania |
10 | Consolidated Statutes is amended by adding a subchapter to read: |
11 | SUBCHAPTER F |
12 | EMPLOYMENT VERIFICATION |
13 | Sec. |
14 | 3951. Scope of subchapter. |
15 | 3952. Definitions. |
16 | 3953. Verification. |
17 | 3954. Violations. |
18 | 3955. Enforcement and sanctions. |
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1 | 3956. Protection from retaliation. |
2 | 3957. Good faith immunity. | <-- |
3 | § 3951. Scope of subchapter. |
4 | This subchapter relates to verification of employment on |
5 | certain public works projects. |
6 | § 3952. Definitions. |
7 | The following words and phrases when used in this subchapter |
8 | shall have the meanings given to them in this section unless the |
9 | context clearly indicates otherwise: |
10 | "Department." The Department of Labor and Industry of the |
11 | Commonwealth. |
12 | "Employee." An individual hired by a public works contractor |
13 | after the effective date of this subchapter for whom a public |
14 | works contractor is required by law to file a Form W-2 with the |
15 | Internal Revenue Service. |
16 | "EVP." The E-Verify Program operated by the Department of |
17 | Homeland Security that electronically verifies employment |
18 | eligibility for employees. |
19 | "INA." The Immigration and Nationality Act (66 Stat. 163, 8 |
20 | U.S.C. § 1101 et seq.). |
21 | "Public body." The Commonwealth of Pennsylvania, any of its |
22 | political subdivisions, any authority created by the General |
23 | Assembly of the Commonwealth and any instrumentality or agency |
24 | of the Commonwealth. |
25 | "Public work." Construction, reconstruction, demolition, |
26 | alteration and repair work other than maintenance work, done |
27 | under contract and paid for in whole or in part out of the funds |
28 | of a public body where the estimated cost of the total project |
29 | is in excess of $25,000. The term shall not include work |
30 | performed under a rehabilitation or manpower training program. |
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1 | "Public works contractor." A contractor that provides goods |
2 | or services under a contract involving a public works project. |
3 | "Public works project." A project involving a public work. |
4 | "Secretary." The Secretary of Labor and Industry of the |
5 | Commonwealth. |
6 | "Subcontractor." A person, other than a natural person, |
7 | regardless of its tier, including, but not limited to, a |
8 | staffing agency, that performs work for a public works |
9 | contractor under a contract for a public work. |
10 | "Willful." Action or conduct undertaken intentionally or |
11 | with reckless disregard for or deliberate ignorance of the |
12 | requirements and obligations established by this subchapter. |
13 | § 3953. Verification. |
14 | (a) General rule.--As a precondition of being awarded a |
15 | contract for a public work, and prior to the execution of the |
16 | contract, a public works contractor shall provide the public |
17 | body with which the contract will be made a verification |
18 | statement in which it shall represent the following subject to | <-- |
19 | and consistent with Federal immigration law: |
20 | (1) The public works contractor will verify the | <-- |
21 | employment eligibility of a new employee for employment |
22 | purposes prior to the commencement of work by the new |
23 | employee through EVP in accordance with Federal law governing |
24 | the use of EVP has registered with and participates in EVP | <-- |
25 | and will continue to participate in EVP throughout the length |
26 | of the contract. |
27 | (2) The public works contractor will provide the public |
28 | body with the verification statement required under |
29 | subsection (b) from each subcontractor it uses or intends to |
30 | use on the public works project prior to the commencement of |
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1 | any work by the subcontractor on the public works project. |
2 | (3) The public works contractor will provide a |
3 | certification from the department verifying that the |
4 | contractor has not previously violated this subchapter. |
5 | (b) Subcontractor verification statements.--Prior to the |
6 | execution of a subcontract with a public works contractor, a |
7 | subcontractor shall provide the public works contractor with a |
8 | verification statement containing substantially the same |
9 | information about the subcontractor as required under subsection |
10 | (a) about the public works contractor. The subcontractor shall |
11 | submit the verification statement to the contractor prior to the |
12 | commencement of any work by the subcontractor on the public |
13 | works project. |
14 | (c) Form.--The verification statement required by this |
15 | section shall be on a form prescribed by the secretary and shall |
16 | comply with the following additional requirements: |
17 | (1) The statement shall include a certification that the |
18 | information in the statement is true and correct and that the |
19 | person signing the statement understands that the submission |
20 | of false or misleading information in connection with the |
21 | verification shall subject the person and the public works |
22 | contractor or subcontractor, as the case may be, to sanctions |
23 | provided by law. |
24 | (2) The statement shall be signed by a representative of |
25 | the public works contractor or subcontractor, as applicable, |
26 | who has sufficient knowledge and authority to make the |
27 | representations and certifications contained in the |
28 | statement. |
29 | (d) Discrimination prohibited.--In conducting the employment | <-- |
30 | eligibility required by this section, a A public works | <-- |
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1 | contractor or its subcontractor, in performing the duties under | <-- |
2 | this subchapter, shall not discriminate against any employee on |
3 | the basis of race, ethnicity, color or national origin. |
4 | § 3954. Violations. |
5 | The following shall constitute a violation of this |
6 | subchapter: |
7 | (1) Employment by a public works contractor or | <-- |
8 | subcontractor of an employee whose employment eligibility has |
9 | not been verified by EVP as required by this subchapter. |
10 | (2) (1) Use by a public works contractor of a | <-- |
11 | subcontractor on a public works project prior to the |
12 | submission by the subcontractor of a verification statement |
13 | required by this subchapter. |
14 | (3) (2) Commencement of work by a subcontractor on a | <-- |
15 | public works project prior to submitting to the public works |
16 | contractor a verification statement required by this |
17 | subchapter. |
18 | (4) Making a false statement or misrepresentation in a | <-- |
19 | verification statement required by this subchapter. |
20 | (3) The public works contractor or subcontractor does | <-- |
21 | not participate in EVP throughout the length of the contract |
22 | as stated as true and correct under the verification |
23 | statement required by this subchapter. |
24 | § 3955. Enforcement and sanctions. |
25 | (a) General rule.--The secretary shall enforce the |
26 | provisions of this subchapter. |
27 | (b) Investigation of complaints.--The secretary shall |
28 | accept, review and investigate in a timely manner any credible |
29 | complaint that a public works contractor or subcontractor has |
30 | violated a provision of this subchapter. |
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1 | (c) Audits.--To ensure compliance with the requirements of |
2 | this subchapter, the secretary shall conduct complaint-based and |
3 | random audits of public works contractors and subcontractors in |
4 | this Commonwealth. In conducting such audits, the secretary |
5 | shall evaluate the process utilized by the public works |
6 | contractors and subcontractors in complying with the |
7 | requirements of this subchapter. |
8 | (d) Sanctions.--A public works contractor or subcontractor |
9 | that willfully engages in violations described in section |
10 | 3954(1), (2) or (3): |
11 | (1) For a first offense relating to the public contract, |
12 | a warning letter may be issued by the secretary detailing the |
13 | violation. The letter shall be posted on the department's |
14 | Internet website. |
15 | (2) For a second offense relating to the public |
16 | contract: |
17 | (i) At the discretion of the public body with which |
18 | the public works contractor has contracted, may be |
19 | subject to termination of the contract by the public body |
20 | without recourse against or penalty to the public body |
21 | and a fine of up to $2,000. The right of the public body | <-- |
22 | to terminate the contract under this subparagraph may not |
23 | be waived. |
24 | (ii) At the discretion of the public works |
25 | contractor with whom the subcontractor has contracted, |
26 | may be subject to termination of the subcontract by the |
27 | public works contractor without recourse against or |
28 | penalty to the public works contractor. The right of the |
29 | public works contractor to terminate the subcontract |
30 | under this subparagraph may not be waived. |
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1 | (3) For a third or subsequent offense relating to the |
2 | public contract, at the discretion of the secretary, in |
3 | addition to the sanctions in paragraph (2), shall be subject |
4 | to debarment under section 531 (relating to debarment or |
5 | suspension) for one year three years. | <-- |
6 | § 3956. Protection from retaliation. |
7 | (a) General rule.--It shall be unlawful for a public works |
8 | contractor or subcontractor to discharge, threaten or otherwise |
9 | retaliate or discriminate against an employee regarding |
10 | compensation or other terms or conditions of employment because |
11 | the employee: |
12 | (1) participates in an investigation, hearing or inquiry |
13 | held by the secretary or any other governmental authority |
14 | under this subchapter; or |
15 | (2) reports or makes a complaint regarding the violation |
16 | of this subchapter to a public works contractor, |
17 | subcontractor or governmental authority. |
18 | (b) Actions.-- |
19 | (1) Any employee who suffers retaliation or |
20 | discrimination in violation of this section may bring an |
21 | action in a court of common pleas in accordance with |
22 | established civil procedures of this Commonwealth. |
23 | (2) The action must be brought within three years from |
24 | the date the employee knew of the retaliation or |
25 | discrimination. |
26 | (c) Relief.--If an employee prevails in an action commenced |
27 | under this section, the employee shall be entitled to the |
28 | following relief: |
29 | (1) Reinstatement of the employee, if applicable. |
30 | (2) Restitution equal to three times the amount of the |
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1 | employee's wages and fringe benefits calculated from the date |
2 | of the violation or discrimination. |
3 | (3) Reasonable attorney fees and costs of the action. |
4 | (4) Any other legal and equitable relief as the court |
5 | deems appropriate. |
6 | § 3957. Good faith immunity. | <-- |
7 | A public works contractor or subcontractor that relies in |
8 | good faith on EVP procedures to verify the employment |
9 | eligibility of employees shall be immune from the sanctions |
10 | authorized under section 3955 (relating to enforcement and |
11 | sanctions) in the event that incorrect information has been |
12 | provided to the public works contractor or subcontractor. |
13 | Section 2. This act shall take effect in 60 days. |
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