Amendment 5801 to House Bill 2648 P.N. 3201, Regular Session 2021-2022

H2648B3201A05801 PWK:EJH 10/23/22 #90 A05801

AMENDMENTS TO HOUSE BILL NO. 2648

Sponsor: SENATOR ROBINSON

Printer's No. 3201

Amend Bill, page 1, lines 22 and 23, by striking out "and for

criminal" in line 22 and all of line 23 and inserting

; providing for public works employment verification and

establishing the Public Works Employment Verification

Account; and making a related repeal.

Amend Bill, page 1, lines 26 and 27; page 2, line 1; by

striking out all of said lines on said pages and inserting

Section 1. Section 503-A(c) of the act of April 9, 1929

(P.L.177, No.175), known as The Administrative Code of 1929, is

amended by adding paragraphs to read:

Amend Bill, page 2, lines 6 and 7, by striking out "Within 30

days of the effective date of this paragraph, appoint agents "

and inserting

No later than May 1, 2023, provide a report to the

General Assembly regarding the ability of the office

Amend Bill, page 2, lines 15 and 16, by striking out "This"

in line 15 and all of line 16 and inserting

The report shall be done in consultation with the

Department of Labor and Industry and shall include:

(i) The estimated number of agents necessary to

conduct investigations.

(ii) The estimated cost for personnel, equipment and

other operational needs related to investigations.

(iii) The amount of time necessary to hire and train

investigators.

(iv) How cases would be coordinated with the

Internal Audits Division within the Department of Labor

and Industry and with other Federal and State law

enforcement agencies investigating fraud within the

unemployment compensation program.

(v) Any Federal or State laws, regulations or

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guidance that may inhibit the ability to conduct

investigations.

(vi) An estimate of the amount of fraudulent

payments made in unemployment compensation programs in

this Commonwealth from March 1, 2020, through September

30, 2022, including the amount of fraudulent payments

recovered up to the date of the report's submission.

(12.2) Provide the report under paragraph (1) to:

(i) The President Pro Tempore of the Senate.

(ii) The Speaker of the House of Representatives.

(iii) The Majority Leader of the Senate.

(iv) The Minority Leader of the Senate.

(v) The Majority Leader of the House of

Representatives.

(vi) The Minority Leader of the House of

Representatives.

(vii) The chairperson and minority chairperson of

the Appropriations Committee of the Senate.

(viii) The chairperson and minority chairperson of

the Appropriations Committee of the House of

Representatives.

(ix) The chairperson and minority chairperson of the

Labor and Industry Committee of the Senate.

(x) The chairperson and minority chairperson of the

Labor and Industry Committee of the House of

Representatives.

Amend Bill, page 2, lines 18 through 30; page 3, lines 1

through 14; by striking out all of said lines on said pages and

inserting

Section 2. The act is amended by adding an article to read:

ARTICLE XXIV-C

PUBLIC WORKS EMPLOYMENT VERIFICATION

Section 2401-C. Definitions.

The following words and phrases when used in this article

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

context clearly states otherwise:

"Department." The Department of General Services of the

Commonwealth.

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

or subcontractor for whom the public works contractor or

subcontractor 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.

"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

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of the Commonwealth.

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

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

Prevailing Wage Act.

"Public works contractor." A contractor that provides work

under a contract involving a public work.

"Secretary." The Secretary of General Services 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. The term shall not include

persons that are material suppliers for a project.

"Willful." Action or conduct undertaken intentionally or

with reckless disregard for or deliberate ignorance of the

requirements and obligations established under this article .

Section 2402-C. Duty of public works contractors and

subcontractors.

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

subcontractor shall participate in EVP and shall, subject to the

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

verify employment eligibility of each new employee. The

department shall post on its publicly accessible Internet

website information regarding the requirements of Federal law

governing the use of EVP.

(b) Discrimination prohibited.--In conducting the

verification required by this section, a public works contractor

or subcontractor shall not discriminate against an employee on

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

Section 2403-C. Verification form.

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

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

with respect to a contract that was awarded prior to the

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

prior to the execution of the contract, a public works

contractor shall provide the public body with a verification

form described in subsection (c), acknowledging its

responsibilities under and its compliance with section 2402-C

and stating that the contractor is enrolled in EVP. Contracts

between a public works contractor and its subcontractors shall

contain information about the requirements of this article .

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

work on a public works project, a subcontractor shall provide

the public body with a verification form described in subsection

section 2402-C and stating that the subcontractor is enrolled in

EVP. Contracts between a subcontractor and its subcontractors

shall contain information about the requirements of this

article .

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

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department's publicly accessible Internet website 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

individual signing the statement understands that the

submission of false or misleading information in connection

with the verification shall subject the individual 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.

Section 2404-C. Violations.

It is a violation of this article for a public works

contractor or subcontractor on a public work to:

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

employee through EVP in accordance with Federal law.

(2) Not provide the verification form as required under

section 2403-C or make a false statement or misrepresentation

with respect to completing the form.

Section 2405-C. Enforcement and sanctions.

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

article.

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

this article , the department shall conduct complaint-based and

random audits of public works contractors and subcontractors in

this Commonwealth.

(d) Reimbursement of department.--

(1) The department may require a public works contractor

or subcontractor to reimburse the department for the cost of

an audit if the public works contractor or subcontractor:

(i) is debarred from public work under subsection

(e); or

(ii) is subject to a civil penalty under subsection

(f).

(2) The cost of an audit shall be reasonably based on

the amount of staff time spent on conducting an individual

audit.

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

a violation under section 2404-C(1):

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

subcontractor shall receive a warning letter from the

department detailing the violation. The letter shall be

posted on the department's publicly accessible Internet

website.

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

subcontractor shall be debarred from public work for 60 days.

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

public works contractor or subcontractor shall be debarred

from public work for not less than one year and not more than

two years.

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

secretary shall file a petition in Commonwealth Court seeking

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

works contractor or subcontractor did not engage in the

willful violation. If the court finds that the public works

contractor or subcontractor engaged in a willful violation,

the court shall order that the public works contractor or

subcontractor be debarred from public work for a period of

three years.

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

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

subcontractor that occurs 10 or more years after a prior

violation shall be deemed to be a first violation.

(6) For the purposes of assessing sanctions, violations

committed by a contractor or subcontractor subject to this

article involving a single public works contract shall be

considered a single violation despite the number of employees

that are the subject of the violations.

(f) Civil penalty and sanctions.--The following shall apply:

(1) A public works contractor or subcontractor that

violates section 2404-C(2) shall be subject to a civil

penalty of not less than $2,500 and not more than $25,000 for

each violation, to be imposed by the department based on the

duration and severity of the violation.

(2) In addition to the penalty under paragraph (1), in

the event of a willful violation of section 2404-C(2), a

public works contractor or subcontractor shall be subject to

debarment for not less than 60 days nor more than three

years, depending on the duration and severity of the

violation.

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

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

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

(relating to administrative law and procedure).

Section 2406-C. Public Works Employment Verification Account.

(a) Establishment.--The Public Works Employment Verification

Account is established as a restricted revenue, interest-bearing

account in the General Fund.

(b) Deposits.--The department shall deposit penalties

collected under section 2405-C(f) into the account.

earned on the account is appropriated on a continuing basis to

the department for the purposes of administering and enforcing

the provisions of this article.

Section 2407-C. Protection from retaliation.

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(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 article ; or

(2) reports or makes a complaint regarding the violation

of this article to a public works contractor or subcontractor

or to any governmental authority.

(b) Actions.--

(1) An 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 180 days from the

date the employee knew of the retaliation or discrimination.

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 retaliation or discrimination.

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

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

deems appropriate.

Section 2408-C. Good faith immunity.

A public works contractor or subcontractor that relies in

good faith on EVP procedures to verify employment eligibility of

new employees under this article shall be immune from the

sanctions authorized under section 2405-C and shall have no

liability to an individual who is not hired or who is discharged

from employment in the event that incorrect information has been

provided to the public works contractor or subcontractor. A

public works contractor or subcontractor that can produce

written acknowledgment provided by an applicable Federal agency

of use of EVP is considered to have acted in good faith.

Section 2409-C. Public works contractor and subcontractor

liability.

Nothing in this article may be construed to render a public

works contractor liable for the action of a subcontractor or a

subcontractor liable for an action of another subcontractor.

Section 2410-C. Rules and regulations.

The department may promulgate rules and regulations necessary

to administer and enforce this article .

Section 2411-C. Cooperation among departments.

The department may enter into agreements with the Department

of Labor and Industry or any other Commonwealth agency to

provide for the cooperative enforcement of the provisions of

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this article .

Section 3. Repeals are as follows:

(1) The General Assembly declares that the repeal under

paragraph (2) is necessary to effectuate the addition of

Article XXIV-C of the act.

(2) The act of July 5, 2012 (P.L.1086, No.127), known as

the Public Works Employment Verification Act, is repealed.

Section 4. The addition of Article XXIV-C of the act is a

continuation of the act of July 5, 2012 (P.L.1086, No.127),

known as the Public Works Employment Verification Act. Except as

otherwise provided in Article XXIV-C of the act, all activities

initiated under the Public Works Employment Verification Act

shall continue and remain in full force and effect and may be

completed under Article XXIV-C of the act. Orders, regulations,

rules and decisions which were made under the Public Works

Employment Verification Act and which are in effect on the

effective date of section 3(2) of this act shall remain in full

force and effect until revoked, vacated or modified under

Article XXIV-C of the act. Contracts, obligations and collective

bargaining agreements entered into under the Public Works

Employment Verification Act are not affected nor impaired by the

repeal of the Public Works Employment Verification Act.

Section 5. This act shall take effect in 60 days.

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