HOUSE AMENDED

 

PRIOR PRINTER'S NOS. 645, 992, 1242, 1745, 2341

PRINTER'S NO.  2347

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

637

Session of

2011

  

  

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

  

  

AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES, JUNE 29, 2012   

  

  

  

AN ACT

  

1

Amending Title 62 (Procurement) of the Pennsylvania Consolidated

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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

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6

immunity under certain circumstances.

7

Requiring public works contractors and subcontractors to verify

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8

employment eligibility; providing for the powers and duties

9

of the Department of General Services; prescribing sanctions;

10

and establishing good faith immunity under certain

11

circumstances.

12

The General Assembly of the Commonwealth of Pennsylvania

13

hereby enacts as follows:

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Section 1.  Chapter 39 of Title 62 of the Pennsylvania

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15

Consolidated Statutes is amended by adding a subchapter to read:

16

SUBCHAPTER F

17

EMPLOYMENT VERIFICATION

18

Sec.

19

3951.  Scope of subchapter.

20

3952.  Definitions.

 


1

3953.  Verification.

2

3954.  Violations.

3

3955.  Enforcement and sanctions.

4

3956.  Protection from retaliation.

5

3957.  Good faith immunity.

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6

§ 3951.  Scope of subchapter.

7

This subchapter relates to verification of employment on

8

certain public works projects.

9

§ 3952.  Definitions.

10

The following words and phrases when used in this subchapter

11

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

12

context clearly indicates otherwise:

13

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

14

Commonwealth.

15

"Employee."  An individual hired by a public works contractor

16

after the effective date of this subchapter for whom a public

17

works contractor is required by law to file a Form W-2 with the

18

Internal Revenue Service.

19

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

20

Homeland Security that electronically verifies employment

21

eligibility for employees.

22

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

23

U.S.C. § 1101 et seq.).

24

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

25

political subdivisions, any authority created by the General

26

Assembly of the Commonwealth and any instrumentality or agency

27

of the Commonwealth.

28

"Public work."  Construction, reconstruction, demolition,

29

alteration and repair work other than maintenance work, done

30

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

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1

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

2

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

3

performed under a rehabilitation or manpower training program.

4

"Public works contractor."  A contractor that provides goods

5

or services under a contract involving a public works project.

6

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

7

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

8

Commonwealth.

9

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

10

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

11

staffing agency, that performs work for a public works

12

contractor under a contract for a public work.

13

"Willful."  Action or conduct undertaken intentionally or

14

with reckless disregard for or deliberate ignorance of the

15

requirements and obligations established by this subchapter.

16

§ 3953.  Verification.

17

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

18

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

19

contract, a public works contractor shall provide the public

20

body with which the contract will be made a verification

21

statement in which it shall represent the following subject to

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22

and consistent with Federal immigration law:

23

(1)  The public works contractor will verify the

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24

employment eligibility of a new employee for employment

25

purposes prior to the commencement of work by the new

26

employee through EVP in accordance with Federal law governing

27

the use of EVP has registered with and participates in EVP 

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28

and will continue to participate in EVP throughout the length

29

of the contract.

30

(2)  The public works contractor will provide the public

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1

body with the verification statement required under

2

subsection (b) from each subcontractor it uses or intends to

3

use on the public works project prior to the commencement of

4

any work by the subcontractor on the public works project.

5

(3)  The public works contractor will provide a

6

certification from the department verifying that the

7

contractor has not previously violated this subchapter.

8

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

9

execution of a subcontract with a public works contractor, a

10

subcontractor shall provide the public works contractor with a

11

verification statement containing substantially the same

12

information about the subcontractor as required under subsection

13

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

14

submit the verification statement to the contractor prior to the

15

commencement of any work by the subcontractor on the public

16

works project.

17

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

18

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

19

comply with the following additional requirements:

20

(1)  The statement shall include a certification that the

21

information in the statement is true and correct and that the

22

person signing the statement understands that the submission

23

of false or misleading information in connection with the

24

verification shall subject the person and the public works

25

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

26

provided by law.

27

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

28

the public works contractor or subcontractor, as applicable,

29

who has sufficient knowledge and authority to make the

30

representations and certifications contained in the

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1

statement.

2

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

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3

eligibility required by this section, a A public works

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4

contractor or its subcontractor, in performing the duties under

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5

this subchapter, shall not discriminate against any employee on

6

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

7

§ 3954.  Violations.

8

The following shall constitute a violation of this

9

subchapter:

10

(1)  Employment by a public works contractor or

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11

subcontractor of an employee whose employment eligibility has

12

not been verified by EVP as required by this subchapter.

13

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

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14

subcontractor on a public works project prior to the

15

submission by the subcontractor of a verification statement

16

required by this subchapter.

17

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

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18

public works project prior to submitting to the public works

19

contractor a verification statement required by this

20

subchapter.

21

(4)  Making a false statement or misrepresentation in a

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22

verification statement required by this subchapter.

23

(3)  The public works contractor or subcontractor does

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24

not participate in EVP throughout the length of the contract

25

as stated as true and correct under the verification

26

statement required by this subchapter.

27

§ 3955.  Enforcement and sanctions.

28

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

29

provisions of this subchapter.

30

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

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1

accept, review and investigate in a timely manner any credible

2

complaint that a public works contractor or subcontractor has

3

violated a provision of this subchapter.

4

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

5

this subchapter, the secretary shall conduct complaint-based and

6

random audits of public works contractors and subcontractors in

7

this Commonwealth. In conducting such audits, the secretary

8

shall evaluate the process utilized by the public works

9

contractors and subcontractors in complying with the

10

requirements of this subchapter.

11

(d)  Sanctions.--A public works contractor or subcontractor

12

that willfully engages in violations described in section

13

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

14

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

15

a warning letter may be issued by the secretary detailing the

16

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

17

Internet website.

18

(2)  For a second offense relating to the public

19

contract:

20

(i)  At the discretion of the public body with which

21

the public works contractor has contracted, may be

22

subject to termination of the contract by the public body 

23

without recourse against or penalty to the public body 

24

and a fine of up to $2,000. The right of the public body 

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25

to terminate the contract under this subparagraph may not

26

be waived.

27

(ii)  At the discretion of the public works

28

contractor with whom the subcontractor has contracted,

29

may be subject to termination of the subcontract by the

30

public works contractor without recourse against or

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1

penalty to the public works contractor. The right of the

2

public works contractor to terminate the subcontract

3

under this subparagraph may not be waived.

4

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

5

public contract, at the discretion of the secretary, in

6

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

7

to debarment under section 531 (relating to debarment or

8

suspension) for one year three years.

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9

§ 3956.  Protection from retaliation.

10

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

11

contractor or subcontractor to discharge, threaten or otherwise

12

retaliate or discriminate against an employee regarding

13

compensation or other terms or conditions of employment because

14

the employee:

15

(1)  participates in an investigation, hearing or inquiry

16

held by the secretary or any other governmental authority

17

under this subchapter; or

18

(2)  reports or makes a complaint regarding the violation

19

of this subchapter to a public works contractor,

20

subcontractor or governmental authority.

21

(b)  Actions.--

22

(1)  Any employee who suffers retaliation or

23

discrimination in violation of this section may bring an

24

action in a court of common pleas in accordance with

25

established civil procedures of this Commonwealth.

26

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

27

the date the employee knew of the retaliation or

28

discrimination.

29

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

30

under this section, the employee shall be entitled to the

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1

following relief:

2

(1)  Reinstatement of the employee, if applicable.

3

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

4

employee's wages and fringe benefits calculated from the date

5

of the violation or discrimination.

6

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

7

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

8

deems appropriate.

9

§ 3957.  Good faith immunity.

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10

A public works contractor or subcontractor that relies in

11

good faith on EVP procedures to verify the employment

12

eligibility of employees shall be immune from the sanctions

13

authorized under section 3955 (relating to enforcement and

14

sanctions) in the event that incorrect information has been

15

provided to the public works contractor or subcontractor.

16

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

17

Section 1.  Short title.

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18

This act shall be known and may be cited as the Public Works

19

Employment Verification Act.

20

Section 2.  Definitions.

21

The following words and phrases when used in this act shall

22

have the meanings given to them in this section unless the

23

context clearly states otherwise:

24

"Department."  The Department of General Services of the

25

Commonwealth.

26

"Employee."  An individual hired by a public works contractor

27

or subcontractor for whom a public works contractor or

28

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

29

Internal Revenue Service.

30

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

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1

Homeland Security that electronically verifies employment

2

eligibility for employees.

3

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

4

political subdivisions, any authority created by the General

5

Assembly of the Commonwealth and any instrumentality or agency

6

of the Commonwealth.

7

"Public work."  As defined under section 2 of the act of

8

August 15, 1961 (P.L.987, No.442), known as the Pennsylvania

9

Prevailing Wage Act.

10

"Public works contractor."  A contractor that provides work

11

under a contract involving a public work.

12

"Secretary."  The Secretary of General Services of the

13

Commonwealth.

14

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

15

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

16

staffing agency that performs work for a public works contractor

17

under a contract for a public work. The term shall not include

18

persons that are material suppliers for a project.

19

"Willful."  Action or conduct undertaken intentionally or

20

with reckless disregard for or deliberate ignorance of the

21

requirements and obligations established under this act.

22

Section 3.  Duty of public works contractors and subcontractors.

23

(a)  General rule.--A public works contractor or

24

subcontractor shall participate in EVP and shall, subject to the

25

requirements of Federal law governing the use of EVP, use EVP to

26

verify employment eligibility of each new employee. The

27

department shall post on its publicly accessible Internet

28

website information regarding the requirements of Federal law

29

governing the use of EVP.

30

(b)  Discrimination prohibited.--In conducting the

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1

verification required by this section, a public works contractor

2

or subcontractor shall not discriminate against an employee on

3

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

4

Section 4.  Verification form.

5

(a)  General rule for public works contractors.--As a

6

precondition of being awarded a contract for a public work, or

7

with respect to a contract that was awarded prior to the

8

effective date of this subsection but has not yet been executed,

9

prior to the execution of the contract, a public works

10

contractor shall provide the public body with a verification

11

form described in subsection (c), acknowledging its

12

responsibilities under and its compliance with section 3.

13

Contracts between a public works contractor and its

14

subcontractors shall contain information about the requirements

15

of this act.

16

(b)  General rule for subcontractors.--Prior to commencing

17

work on a public works project, a subcontractor shall provide

18

the public body with a verification form described in subsection

19

(c) acknowledging its responsibilities and its compliance with

20

section 3. Contracts between a subcontractor and its

21

subcontractors shall contain information about the requirements

22

of this act.

23

(c)  Form.--The verification form required by this section

24

shall be on a form prescribed by the secretary, and posted on

25

the Internet, and shall comply with the following additional

26

requirements:

27

(1)  The statement shall include a certification that the

28

information in the statement is true and correct and that the

29

individual signing the statement understands that the

30

submission of false or misleading information in connection

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1

with the verification shall subject the individual and the

2

public works contractor or subcontractor, as the case may be,

3

to sanctions provided by law.

4

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

5

the public works contractor or subcontractor, as applicable,

6

who has sufficient knowledge and authority to make the

7

representations and certifications contained in the

8

statement.

9

Section 5.  Violations.

10

It is a violation of this act for a public works contractor

11

or subcontractor on a public work to:

12

(1)  Fail to verify the employment eligibility of a new

13

employee through EVP in accordance with Federal law.

14

(2)  Not provide the verification form as required under

15

section 4, or to make a false statement or misrepresentation

16

with respect to completing the form.

17

Section 6.  Enforcement and sanctions.

18

(a)  General rule.--The department shall enforce this act.

19

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

20

accept, review and investigate in a timely manner any credible

21

complaint that a public works contractor or subcontractor has

22

violated a provision of this act.

23

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

24

this act, the department shall conduct complaint-based and

25

random audits of public works contractors and subcontractors in

26

this Commonwealth.

27

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

28

a violation under section 5(1):

29

(1)  For a first violation, a public works contractor or

30

subcontractor shall receive a warning letter from the

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1

department detailing the violation. The letter shall be

2

posted on the department's Internet website.

3

(2)  For a second violation, a public works contractor or

4

subcontractor shall be debarred from public work for 30 days.

5

(3)  For a third violation and subsequent violations, a

6

public works contractor or subcontractor shall be debarred

7

from public work for not less than 180 days and not more than

8

one year.

9

(4)  In the case of an alleged willful violation, the

10

secretary shall file a petition in Commonwealth Court seeking

11

to have the court issue a rule to show cause why a public

12

works contractor or subcontractor did not engage in the

13

willful violation. If the court finds that the public works

14

contractor or subcontractor engaged in a willful violation,

15

the court shall order that the public works contractor or

16

subcontractor be debarred from public work for a period of

17

three years.

18

(5)  Notwithstanding the provisions of paragraph (1), (2)

19

or (3), a violation by a public works contractor or

20

subcontractor that occurs ten years or more after a prior

21

violation shall be deemed to be a first violation.

22

(6)  For the purposes of assessing sanctions, violations

23

committed by a contractor or subcontractor subject to this

24

act involving a single public works contract shall be

25

considered a single violation despite the number of employees

26

that are the subject of the violations.

27

(e)  Civil penalty.--A public works contractor or

28

subcontractor that violates section 5(2) shall be subject to a

29

civil penalty of not less than $250 and not more than $1,000 for

30

each violation, to be imposed by the department.

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1

(f)  Notice and appeal.--Actions taken by the department

2

under subsections (d)(1), (2) and (3) and (e) shall be subject

3

to the notice, appeal and other provisions of 2 Pa.C.S.

4

(relating to administrative law and procedure).

5

Section 7.  Protection from retaliation.

6

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

7

contractor or subcontractor to discharge, threaten or otherwise

8

retaliate or discriminate against an employee regarding

9

compensation or other terms or conditions of employment because

10

the employee:

11

(1)  participates in an investigation, hearing or inquiry

12

held by the secretary or any other governmental authority

13

under this act; or

14

(2)  reports or makes a complaint regarding the violation

15

of this act to a public works contractor or subcontractor or

16

to any governmental authority.

17

(b)  Actions.--

18

(1)  An employee who suffers retaliation or

19

discrimination in violation of this section may bring an

20

action in a court of common pleas in accordance with

21

established civil procedures of this Commonwealth.

22

(2)  The action must be brought within 180 days from the

23

date the employee knew of the retaliation or discrimination.

24

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

25

under this section, the employee shall be entitled to the

26

following relief:

27

(1)  Reinstatement of the employee, if applicable.

28

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

29

employee's wages and fringe benefits calculated from the date

30

of the retaliation or discrimination.

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1

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

2

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

3

deems appropriate.

4

Section 8.  Good faith immunity.

5

A public works contractor or subcontractor that relies in

6

good faith on EVP procedures to verify employment eligibility of

7

new employees under this act shall be immune from the sanctions

8

authorized under section 6 and shall have no liability to an

9

individual who is not hired or who is discharged from employment

10

in the event that incorrect information has been provided to the

11

public works contractor or subcontractor. A public works

12

employer contractor or subcontractor that can produce written

<--

13

acknowledgment provided by an applicable Federal agency of use

14

of EVP is considered to have acted in good faith.

15

Section 9.  Public works contractor and subcontractor liability.

16

Nothing in this act may be construed to render a public works

17

contractor liable for the action of a subcontractor or a

18

subcontractor liable for an action of another subcontractor.

19

Section 10.  Rules and regulations.

20

The department may promulgate rules and regulations necessary

21

to administer and enforce this act.

22

Section 11.  Cooperation among departments.

23

The department may enter into agreements with the Department

24

of Labor and Industry or any other Commonwealth agency to

25

provide for the cooperative enforcement of the provisions of

26

this act.

27

Section 20.  Effective date.

28

This act shall take effect January 1, 2013.

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