Regular Session 2021-2022 House Bill 2810 P.N. 3471

PRINTER'S NO. 3471

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

2810

Session of

2022

INTRODUCED BY GALLOWAY, McCLINTON, HARKINS, DRISCOLL, RABB,

DELLOSO, T. DAVIS, N. NELSON, SCHLOSSBERG, McNEILL,

D. WILLIAMS, SANCHEZ, HILL-EVANS, HOHENSTEIN, PARKER, DALEY,

HOWARD, KRUEGER, O'MARA, CIRESI, NEILSON, HENNESSEY, WARREN,

KRAJEWSKI, FIEDLER, CEPHAS, WEBSTER, BRADFORD, STURLA,

KINSEY, PISCIOTTANO, MULLINS, D. MILLER, SHUSTERMAN, MERSKI,

ROZZI, SCHWEYER, GUENST, HARRIS, MULLERY, BIZZARRO,

SAMUELSON, BRIGGS, ZABEL, FITZGERALD, COVINGTON AND MATZIE,

SEPTEMBER 16, 2022

REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, SEPTEMBER 16, 2022

AN ACT

Amending Title 63 (Professions and Occupations (State Licensed))

of the Pennsylvania Consolidated Statutes, providing for

independent contractors; imposing duties on the Department of

Labor and Industry and the Secretary of Labor and Industry;

establishing the Labor Broker Registration Account; imposing

penalties; and making a related repeal.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Title 63 of the Pennsylvania Consolidated

Statutes is amended by adding a part to read:

PART III

INDEPENDENT CONTRACTORS

Chapter

41. Workplace Misclassification

CHAPTER 41

WORKPLACE MISCLASSIFICATION

Sec.

4101. Scope of chapter.

4102. Definitions.

4103. Independent contractors generally.

4104. Independent contractors in construction industry.

4105. Improper classification of employees.

4106. Criminal penalties.

4107. Private right of action.

4108. Administrative penalties.

4109. Debarment.

4110. Stop-work orders.

4111. Procedure.

4112. Certain agreements and documents prohibited.

4113. Labor brokers.

4114. Retaliation for action prohibited.

4115. Availability and posting of information.

4116. Use of penalty funds.

4117. Rules and regulations.

4118. Interagency cooperation.

4119. Annual reports.

4120. Construction of law.

4121. Funding.

§ 4101. Scope of chapter.

This chapter relates to wo rkplace misclassification .

§ 4102. Definitions.

The following words and phrases when used in this chapter

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

context clearly indicates otherwise:

"Account." The Labor Broker Registration Account established

under section 4113(i) (relating to labor brokers).

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" Attorney General." The Attorney General of the Commonwealth

or the authorized representative of the Attorney General of the

Commonwealth.

"Construction." Erection, reconstruction, demolition,

alteration, modification, custom fabrication, building,

assembling, site preparation and repair work done on any real

property or premises under contract, whether or not the work is

for a public body and paid for from public funds.

"Debar." As follows:

(1) Action taken by the secretary to prohibit a

contractor, subcontractor or person from contracting with or

participating in contracts for State-supervised or State-

funded construction and other State procurement contracts for

a specified period or permanently.

(2) The debarment shall include all divisions or other

organizational elements of a contractor or subcontractor

unless limited by its terms to specific divisions or

organizational elements.

(3) The debarment may apply to affiliates or other

persons or entities associated with the contractor,

subcontractor or individual if they are specifically named

and given written notice of the debarment and an opportunity

to appeal.

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

Commonwealth.

"Employee." As follows:

(1) An individual performing a service for an employer

for wages, remuneration or other compensation.

(2) The term includes:

(i) In relation to workers' compensation, as the

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term "employe" is defined in section 104 of the Workers'

Compensation Act.

(ii) I n relation to unemployment compensation, as

the term "employe" is defined in section 4(i) of the

Unemployment Compensation Law.

"Employer." As follows:

(1) A person, including an agent of the person, that

engages the services of an employee for wages, remuneration

or other compensation.

(2) The term includes:

(i) In relation to workers' compensation, as the

term "employer" is defined in section 103 of the Workers'

Compensation Act.

(ii) In relation to unemployment compensation, as

the term "employer" is defined in section 4(j) of the

Unemployment Compensation Law.

"Employer-employee relations statute." As follows:

(1) A statute that governs employer-employee relations

in this Commonwealth.

(2) The term includes the following:

(i) The Unemployment Compensation Law.

(ii) The Workers' Compensation Act.

(iii) The act of June 1, 1937 (P.L.1168, No.294),

known as the Pennsylvania Labor Relations Act.

(iv) The act of October 27, 1955 (P.L.744, No.222),

known as the Pennsylvania Human Relations Act.

(v) The act of July 14, 1961 (P.L.637, No.329),

known as the Wage Payment and Collection Law.

(vi) The act of August 15, 1961 (P.L.987, No.442),

known as the Pennsylvania Prevailing Wage Act.

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(vii) The act of January 17, 1968 (P.L.11, No.5),

known as The Minimum Wage Act of 1968.

(viii) The act of July 23, 1970 (P.L.563, No.195),

known as the Public Employe Relations Act.

(3) The term does not include the act of October 7, 2019

(P.L.454, No.75), known as the Construction Industry Employee

Verification Act.

"Labor broker." An entity or individual that hires employees

and sells the services of the employees to another employer in

the construction industry in need of temporary employees.

"Person." An individual, firm, sole proprietorship,

partnership, corporation, association or other entity.

"Public body." Any of the following:

(1) The Commonwealth.

(2) A political subdivision, including a county, city,

borough, incorporated town, township or municipal authority,

of this Commonwealth.

(3) An authority created by the General Assembly.

(4) An instrumentality or agency of the Commonwealth.

(5) A school district of this Commonwealth.

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

Commonwealth or the authorized representative of the Secretary

of Labor and Industry of the Commonwealth.

"Unemployment Compensation Law." The act of December 5, 1936

(2nd Sp.Sess., 1937 P.L.2897, No.1), known as the Unemployment

Compensation Law.

"Workers' Compensation Act." The act of June 2, 1915

(P.L.736, No.338), known as the Workers' Compensation Act.

§ 4103. Independent contractors generally.

(a) Characteristics of independent contractor.--Except as

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provided in section 4104 (relating to independent contractors in

construction industry), an individual shall be considered an

employee and not an independent contractor unless all of the

following apply:

(1) The individual is free from control and direction in

connection with the performance of the service, both under

the contract for the performance of service and in fact.

(2) The service is performed outside the usual course of

the business of the employer.

(3) The individual is customarily engaged in an

independently established trade, occupation, profession or

business of the same nature as that involved in the service

performed.

(b) Factors not to be considered.--The failure to withhold

Federal or State income taxes or pay unemployment compensation

contributions or workers' compensation premiums with respect to

an individual's remuneration shall not be considered in

determining whether the individual is an independent contractor

for purposes of an employer-employee relations statute.

(1) An individual who is an independent contractor as

determined under this section is not an employee for purposes

of the Workers' Compensation Act. For purposes of this

section, each employment relationship shall be considered

separately.

(2) Nothing in this act shall be construed to affect

section 321(2) of the Workers' Compensation Act.

(d) Unemployment compensation.--

(1) For purposes of section 4(l)(2)(B) of the

Unemployment Compensation Law, an individual is customarily

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engaged in an independently established trade, occupation,

profession or business with respect to services that the

individual performs only if the criteria specified under

section 4104(2), (3), (4), (5), (6) and (7) are satisfied.

(2) Except as provided in paragraph (1), nothing in this

act shall be construed to affect any exclusion from

"employment" as defined in the Unemployment Compensation Law.

§ 4104. Independent contractors in construction industry.

An individual who is customarily engaged in an independently

established trade, occupation, profession or business with

respect to services that the individual performs in the

commercial or residential construction industry shall be

considered an employee and not an independent contractor unless

all of the following apply:

(1) The individual meets the criteria specified under

section 4103(a) (relating to independent contractors

generally).

(2) The individual possesses the essential tools,

equipment and other assets necessary to perform the services

independent of the person for whom the services are

performed.

(3) The individual's arrangement with the person for

whom the services are performed is such that the individual

shall realize a profit or suffer a loss as a result of

performing the services.

(4) The individual performs the services through a

business in which the individual has a proprietary interest.

(5) The individual maintains a business location that is

separate from the location of the person for whom the

services are being performed.

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(6) The individual:

(i) previously performed the same or similar

services for another person in accordance with paragraphs

(2), (3), (4) and (5) while free from direction or

control over performance of the services, both under the

contract of service and in fact; or

(ii) holds the individual out to other persons as

available and able, and in fact is available and able, to

perform the same or similar services in accordance with

paragraphs (2), (3), (4) and (5) while free from

direction or control over performance of the services.

(7) The individual maintains liability insurance during

the term of this contract of at least $50,000.

(8) The individual has a written contract that is

project specific and contains a particular scope of work and

definitive time period to perform services.

§ 4105. Improper classification of employees.

(a) Violation.--An employer, or officer or agent of an

employer, shall be in violation of this chapter and shall be

subject to the penalties, remedies and actions contained in this

chapter if the employer, officer or agent fails to properly

classify an individual as an employee for purposes of an

employer-employee relations statute.

(b) Separate offenses.--Each individual who is not properly

classified as an employee shall be the basis of a separate

violation of this section.

(1) If the secretary receives information indicating

that a person has violated this chapter, the secretary may

investigate the matter as specified in subsection (d) and

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issue an order to show cause why the person should not be

found in violation of this chapter.

(2) A person served with an order to show cause shall

have a period of 10 days from the date the order is served to

file an answer in writing.

(3) If the person fails to file a timely and adequate

answer to the order to show cause, the secretary may do any

of the following:

(i) Petition a court of competent jurisdiction to

issue a stop-work order as provided in section 4110

(relating to stop-work orders).

( ii) Immediately assess penalties as provided in

section 4108 (relating to administrative penalties).

(d) Investigations.--In conducting an investigation under

this section, the secretary may:

(1) Investigate and ascertain wages paid to an employee.

(2) Enter and inspect a worksite or place of business at

any reasonable time to examine and inspect records and

conditions of employment that are necessary and appropriate

to the enforcement of this chapter.

(3) Obtain statements from the employer or individuals

present at a worksite, in person or in writing.

(4) Subpoena witnesses, administer oaths, examine

witnesses and copy or compel the production of records,

contracts and other documents that are necessary and

appropriate to the enforcement of this chapter.

(5) Petition the Commonwealth Court to enforce any

subpoena or order issued by the department under this

chapter.

(e) Enforcement.--

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(1) If, subsequent to issuing an order to show cause

under subsection (c), the secretary finds that an employer

has violated this chapter, the secretary:

(i) May impose administrative penalties under

section 4108.

(ii) May refer the matter to the Attorney General

for criminal investigation.

(iii) Shall refer the matter to the Attorney General

if the employer has previously been found in violation of

this chapter in another matter.

(2) The Attorney General shall have jurisdiction under

section 4106 (r elating to criminal penalties) to initiate an

investigation or prosecution of criminal violations of this

chapter regardless of whether a referral has been made.

(f) Acting in concert with other parties.--

(1) A party that does not meet the definition of

"employer" in section 4102 (relating to definitions) but that

contracts or renews a contract with an employer to supply

labor, knowing that the employer will misclassify the

supplied employees in violation of this chapter, shall be

subject to the same penalties, remedies or other actions as

the employer found to be in violation of this chapter.

(2) An employer that contracts with a labor broker that

has not registered as required under this chapter is

rebuttably presumed to have acted in concert with the labor

broker if the labor broker has violated subsection (a).

(g) Defense.--It shall be a defense to an alleged violation

of this section if the person for whom the services are

performed in good faith believed that the individual who

performed the services qualified as an independent contractor at

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the time the services were performed.

§ 4106. Criminal penalties.

(a) Grading.--An employer, or officer or agent of an

employer, that knowingly violates section 4105(a) (relating to

improper classification of employees) commits:

(1) A misdemeanor of the first degree if the employer

has no prior offense under section 4105(a).

(2) A felony of the third degree if the employer has one

or more prior offenses under section 4105(a).

(b) Summary offense.--An employer, or officer or agent of an

employer, that negligently fails to properly classify an

individual as an employee under section 4105(a) commits a

summary offense and shall, upon conviction, be sentenced to pay

a fine of not more than $1,000. Evidence of a prior offense

under this subsection shall be admissible as evidence of intent

under subsection (a).

(1) The Attorney General shall have concurrent

prosecutorial jurisdiction with the district attorney of the

appropriate county for a violation under this section and an

offense arising out of the activity prohibited by this

section.

(2) No person charged with a violation of this section

by the Attorney General shall have standing to challenge the

authority of the Attorney General to prosecute the case and,

if a challenge is made, the challenge shall be dismissed, and

no relief shall be available in the courts of this

Commonwealth to the person making the challenge.

(d) Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

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subsection unless the context clearly indicates otherwise:

"Prior offense." A conviction of a violation of section

4105, if the judgment of sentence was imposed before the

defendant is sentenced for a separate violation of section 4105.

§ 4107. Private right of action.

(a) Authorization.--An employee who has been misclassified

in violation of this chapter or who has been discharged,

threatened or has otherwise suffered retaliation, discrimination

or any other adverse action as a result of participating in an

investigation or reporting a violation of this chapter may bring

a private right of action in a court of common pleas in

accordance with established civil procedures of this

Commonwealth.

(b) Time.--An action under this section must be brought

within three years from the date that the employee knew of the

violation, retaliation or discrimination.

under this section, the employee shall be entitled to the

following relief:

(1) Reinstatement of the employee without a loss in

seniority status, 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, retaliation or discrimination.

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

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

deems appropriate to make the employee whole.

§ 4108. Administrative penalties.

(a) Authorization.--When the secretary finds that a person

has violated this chapter, the secretary may:

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(1) Assess and collect civil penalties of not more than

$15,000 for the first violation and not more than $25,000 for

each subsequent violation.

(2) Order a financial audit or tax audit of the person.

(b) Factors to be considered.--When determining the amount

of the penalty to be imposed, the secretary shall consider

factors, including the following:

(1) The history of previous violations by the employer.

(2) The seriousness of the violation.

(3) The good faith of the employer.

(4) The size of the employer's business.

§ 4109. Debarment.

(a) Effect on contracts.--If, after notice and hearing, the

secretary determines that an employer, or officer or agent of

the employer, knowingly misclassified an employee in violation

of this chapter, a public body may not award a contract to the

employer, or to a corporation or partnership in which the

violator has an interest, for a set period of time or

permanently, as determined by the secretary.

(b) Debarment list.--The secretary shall develop and

maintain a list of employers that are debarred under this

chapter and shall regularly post and update the list on the

department's publicly accessible Internet website.

notice to all public bodies in this Commonwealth of the names of

employers that knowingly misclassified an employee in violation

of this chapter. For the purposes of this chapter, the term

"notice" shall include the posting of the debarment list on the

department's publicly accessible Internet website.

§ 4110. Stop-work orders.

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(a) Authorization.--If the department determines that an

employer, or officer or agent of the employer, has intentionally

failed to properly classify an individual as an employee under

section 4105(a) (relating to improper classification of

employees), the secretary may issue an order requiring the

cessation of work by individuals who are improperly classified.

(b) Criteria.--The following apply to a stop-work order:

(1) The order may require satisfaction of conditions

necessary to ensure that the employer complies with this

chapter.

(2) The order shall take effect when served upon the

employer by first class mail or posting at the employer's

worksite.

(3) The order shall remain in effect until released by

the department or a court of competent jurisdiction.

(4) The order shall be effective against a successor

entity that:

(i) has one or more of the same principals or

officers as the employer against whom the order was

issued;

(ii) performs similar work within the same

geographical area;

(iii) occupies the same premises;

(iv) shares the same telephone or fax number;

(v) has the same email address or Internet website;

(vi) employs substantially the same work force or

administrative employees, or both;

(vii) utilizes the same tools, equipment or

facilities;

(viii) employs or engages the services of any person

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or persons involved in the direction or control of the

other; or

(ix) lists substantially the same work experience.

(5) The order shall include a notice informing the

recipient of the right to appeal the order.

(b) Review of stop-work order.--A stop-work order may be

appealed to the secretary within seven days of the date or the

stop-work order. The following apply:

(1) The department, affected workers and their

representatives shall automatically be parties to the

proceedings.

(2) The secretary shall appoint a hearing officer, who

shall conduct an expedited hearing within 15 days of receipt

of the appeal, subject to 2 Pa.C.S. Chs. 5 Subch. A (relating

to practice and procedure of Commonwealth agencies) and 7

Subch. A (relating to judicial review of Commonwealth agency

action), and shall issue a proposed report within 15 days of

the hearing. The following apply:

(i) Exceptions shall be due 10 days after the

issuance of the proposed report.

(ii) A brief opposing exceptions shall by due seven

days after exceptions are filed.

(3) The secretary shall issue a final decision within 15

days of receipt of the brief opposing exceptions.

(4) The stop-work order shall remain in full effect

until the secretary issues a decision.

day against an employer for each day that the employer conducts

business operations that are in violation of a stop-work order

issued under this section.

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§ 4111. Procedure.

(a) Hearings.--Actions taken under sections 4105(c)

(relating to improper classification of employees) and 4108

(relating to administrative penalties) shall be subject to the

provisions of 2 Pa.C.S. (relating to administrative law and

procedure).

(b) Subpoena powers.--

(1) The department shall have the power to subpoena

witnesses, administer oaths, examine witnesses and take

testimony or compel the production of documents.

(2) The secretary may petition the Commonwealth Court to

enforce any order or subpoena issued under this chapter.

§ 4112. Certain agreements and documents prohibited.

(a) Violation.--No person shall require or demand that an

individual enter into an agreement or sign a document that

results in the improper classification of that individual as an

independent contractor.

(b) Penalty.--A violation of subsection (a) shall be

punishable by an administrative fine of not less than $2,500 and

not more than $5,000. Each violation shall be considered a

separate offense under this section.

§ 4113. Labor brokers.

(a) Prohibition.--A person may not hold oneself out or

engage in any act as a labor broker without satisfying the

registration requirements under this section.

(b) Proof of registration.--A labor broker shall include the

labor broker's registration number issued by the department in

all advertisements distributed within this Commonwealth and on

all contracts, estimates and related documents created after the

effective date of this section.

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maintain a list of completed registrations under this chapter on

the department's publicly accessible Internet website, which

shall include each labor broker's legal business name, any

assumed business name, business address, verification number and

verification expiration date.

(d) Registration.--

(1) A labor broker shall apply, in writing or

electronically, for registration in a manner and on a form

prescribed by the department.

(2) The registration form shall include the following

information:

(i) For any individual, sole proprietor, primary

owner or officer of a business entity, all of the

following information:

(A) The applicant's full legal name and title at

the applicant's business.

(B) The applicant's business address and

telephone number.

number or Federal tax identification number used for

business purposes.

(D) All prior business names and addresses of

the applicant.

(ii) The legal business name, any assumed business

name, designated business address, physical address,

telephone number and email address of the applicant.

(iii) For an out-of-State business entity, the legal

business name, any assumed business name, designated

business address, physical address, telephone number and

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email address of the applicant and any identification

number issued to the applicant by the applicant's state

or political subdivision through registration, licensing

or verification systems, if applicable.

(iv) For any individual, sole proprietor, primary

owner or officer of a business entity, the name of all

other persons with an ownership interest in the applicant

who are not identified under subparagraph (i). This

subparagraph shall not apply to shareholders with less

than a 5% ownership interest in a publicly traded

corporation.

(v) A description of the nature of the business of

the applicant.

(vi) Whether the applicant has been suspended or

debarred within the last 10 years.

(vii) Proof of financial responsibility, which may

include liability insurance or bonding, or self-

insurance.

(viii) The fee specified under subsection (h).

(ix) A signed statement by the applicant that the

information in the application is true and accurate and

any individual signing the application is an authorized

agent of the applicant.

(e) Expiration and renewal.--

(1) The registration shall be completed on a fixed,

biennial basis on a date determined by the department.

(2) The department shall accept an application for a

registration renewal before the expiration of an active

registration in a time frame specified by the department.

(f) Certification of compliance.--After a labor broker

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completes an application for registration or registration

renewal under this section and pays the fee specified under

subsection (h), the department shall issue a certificate of

compliance to the labor broker that includes a registration

number.

(g) Reporting changes.--A labor broker shall update its

registration within 30 days of any change in personal or

business information required to be provided to the department

under this section.

(h) Fees.--

(1) An applicant for registration or registration

renewal under this section shall pay an application fee of

not more than $300 to the department.

(2) Fees under paragraph (1) shall be deposited into the

account.

(i) Labor Broker Registration Account.--

(1) The Labor Broker Registration Account is established

as a restricted revenue, interest-bearing account in the

General Fund.

(2) The department shall deposit fees and penalties

collected under this section into the account.

(3) Money in the account and interest earned on the

money are appropriated on a continuing basis to the

department for administering and enforcing the provisions of

this chapter.

(j) Prohibited acts.--

(1) On or after the effective date of this section, a

person who holds oneself out or engages in any act as a labor

broker may not do any of the following:

(i) Fail to complete the registration as a labor

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broker as required under this section.

(ii) Fail to display or identify its registration

number as required under subsection (b).

(iii) Knowingly make a false statement in the

application for labor broker registration.

(iv) Knowingly contract with or perform work as a

labor broker for another person:

(A) without first completing the registration

required under this chapter; or

(B) after the registration required under this

chapter has expired or has been suspended.

(v) Knowingly contract with or pay another person

for work as a labor broker if:

(A) the person has not completed the

registration required under this section; or

(B) the person's registration required under

this section has expired or has been suspended.

(2) A person seeking to contract or engage with a

purported labor broker shall verify the registration of the

purported labor broker using the verification system

described in subsection (c).

(3) A person may not contract with or engage the

services of an unregistered labor broker.

(4) A person found to have engaged with an unregistered

labor broker shall be subject to penalties described under

subsection (l).

(k) Investigations.--

(1) If the secretary receives information indicating

that a person has violated this section, the secretary may

investigate the matter.

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(2) The secretary may take any of the following actions:

(i) Enter and inspect a worksite or place of

business at any reasonable time to examine and inspect

records that relate to the compliance of this section.

(ii) Subpoena witnesses, administer oaths, examine

witnesses and copy or compel the production of records,

contracts and other documents that are necessary and

appropriate to the enforcement of this section.

(iii) Petition the Commonwealth Court to enforce any

subpoena or order issued by the department under this

chapter.

(l) Penalties.--

(1) A person that violates subsection (j)(1)(i) or (ii)

shall be subject to the following:

(i) For a first violation, the department shall

issue a warning letter to the person detailing the

omission and provide 30 days to correct the violation.

(ii) For a second or subsequent violation, the

department shall bring an administrative action to assess

a fine of up to $2,500 for each day that the labor broker

is not registered.

(2) For a violation of subsection (j)(1)(iii), (iv) or

(v), the department shall bring an administrative action to

assess a fine of up to $10,000 per violation.

(3) A person that violates subsection (j)(2) or (3)

shall be subject to the following:

(i) For a first violation, the department shall

issue a fine of no more than $25,000.

(ii) For second or subsequent violations, the

department shall issue a fine not to exceed $25,000 per

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day per worker provided by the unregistered labor broker.

(m) Suspensions of registrations.--The secretary may suspend

a labor broker's registration. The suspension shall be subject

to appeal of the administrative action.

(n) Other relief.--In addition to the penalties specified

under this section, the department may seek other relief,

including injunctive relief and costs.

§ 4114. Retaliation for action prohibited.

(a) Prohibitions.--It shall be unlawful for an employer, or

officer or agent of an employer, to discharge, threaten or

otherwise retaliate or discriminate in any manner against an

employee regarding compensation or other terms or conditions of

employment because the employee:

(1) participates in an investigation, hearing or inquiry

by the secretary or a governmental authority; or

(2) reports or makes a complaint regarding the violation

of this chapter to an employer or a governmental authority.

(b) Action.--An employee who suffers retaliation or

discrimination in violation of this section may bring a private

right of action under section 4107 (relating to private right of

action).

in good faith alleges noncompliance with this chapter shall be

afforded the rights provided by this chapter, notwithstanding

the person's failure to prevail on the merits.

(d) Rebuttable presumptions.--Taking adverse action against

a person within 90 days of the person's exercise of rights

protected under this chapter shall raise a rebuttable

presumption of having done so in retaliation for the exercise of

those rights.

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§ 4115. Availability and posting of information.

(a) Department responsibilities.--The department shall:

(1) Create a poster that outlines the requirements and

penalties under this chapter and shall make the poster

available on its publicly accessible Internet website.

(2) At the discretion of the secretary, establish a

toll-free hotline telephone number to receive alleged

violations of this chapter.

(3) Maintain and make available on its publicly

accessible Internet website information regarding

misclassification, including the following:

(i) The prohibition against employers misclassifying

employees.

(ii) The standards to determine whether an

individual is an employee or independent contractor.

(iii) Information on how a worker or a worker's

authorized representative may contact a representative of

the department to provide information to, or file a

complaint with, the department regarding suspected worker

misclassification.

(b) Employer responsibilities.--Every employer subject to

this chapter shall publicly post the poster described in

subsection (a)(1) in a conspicuous place where employees

normally pass and shall, upon request, transmit to an employee

information regarding this chapter and any regulations issued

under this chapter through electronic means or another form of

communication.

§ 4116. Use of penalty funds.

Any sum collected as a penalty under:

(1) Sections 4108 (relating to administrative

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penalties), 4110 (relating to stop-work orders) and 4112

(relating to certain agreements and documents prohibited) for

a violation of section 4105(a)(1) (relating to improper

classification of employees) shall be divided equally between

the Workers' Compensation Administration Fund created under

section 446(a) of the Workers' Compensation Act and the

department for costs related to enforcement.

(2) Sections 4108, 4110 and 4112 for a violation of

section 4105(a)(2) shall be divided equally between the

Special Administration Fund created under section 601.1(a) of

the Unemployment Compensation Law and the department for

costs related to enforcement.

(3) Section 4112 for a violation of any other provision

of this chapter shall be divided equally between the Workers'

Compensation Administration Fund, the Special Administration

Fund and the department for costs related to enforcement.

§ 4117. Rules and regulations.

The department may promulgate rules and regulations necessary

to implement this chapter and help combat the misclassification

of employees.

§ 4118. Interagency cooperation.

(a) Data.--The Bureau of Workers' Compensation of the

department, the Bureau of Labor Law Compliance of the department

and the Department of Revenue of the Commonwealth shall share

data to the fullest extent permissible by Federal and State law,

in addition to existing authority to share data with the Office

of Unemployment Compensation Tax Services of the department, for

the purposes of investigating employee misclassification.

(b) Employment information.--All State agencies shall share

employment information and Federal employer identification

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numbers from all State agency business applications to the

fullest extent permitted by law for the purposes of compliance

crossmatches.

to coordinate enforcement strategies involving State agencies.

The following apply:

(1) The working group shall include, at a minimum,

representatives from the department, the Department of

Revenue of the Commonwealth, the Office of Attorney General

and county district attorneys offices.

(2) A representative designated by the secretary shall

serve as the chair of the working group.

(3) The chair of the working group may invite other

individuals to participate in the activities of the working

group.

(4) The working group shall meet at least quarterly at

the time and location and in the manner provided by the chair

of the working group. The working group may meet more often

if deemed necessary by the chair of the working group.

§ 4119. Annual reports.

By March 1 of the year following the first full year

following the effective date of this section, and each March 1

thereafter, the department shall submit an annual report to the

General Assembly, which details, to the maximum extent possible,

data on the previous calendar year's administration and

enforcement of this chapter. The department may include in an

annual report any relevant facts and statistics that it deems

necessary.

§ 4120. Construction of law.

Nothing contained in this chapter shall be construed to

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impair or affect in any manner the ability of the department and

secretary to carry out the powers and duties prescribed by the

laws of this Commonwealth.

§ 4121. Funding.

(a) Enforcement.--The department shall not be required to

enforce this chapter until adequate funding is appropriated.

(b) Recovery of fees and costs.--The department, the Office

of Attorney General or a district attorney's office shall be

entitled to recover attorney fees and costs associated with the

investigation of worker misclassification from employers who

violate the provisions of this chapter.

Section 2. Repeals are as follows:

(1) The General Assembly declares that the repeal under

paragraph (2) is necessary to effectuate the addition of 63

Pa.C.S. Ch. 41.

(2) The act of October 13, 2010 (P.L.506, No.72), known

as the Construction Workplace Misclassification Act, is

repealed.

Section 3. Except as provided in 63 Pa.C.S. Ch. 41, all

activities initiated under the act of October 13, 2010 (P.L.506,

No.72), known as the Construction Workplace Misclassification

Act, shall continue and remain in full force and effect and may

be completed under 63 Pa.C.S. Ch. 41. Orders, regulations, rules

and decisions which were made under the Construction Workplace

Misclassification Act and which are in effect on the effective

date of this act shall remain in full force and effect until

revoked, vacated or modified under 63 Pa.C.S. Ch. 41. Contracts,

obligations and collective bargaining agreements entered into

under the Construction Workplace Misclassification Act are not

affected nor impaired by the repeal of the Construction

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Workplace Misclassification Act.

Section 4. This act shall take effect as follows:

(1) This section shall take effect immediately.

(2) The addition of 63 Pa.C.S. § 4113 shall take effect

in one year.

(3) The remainder of this act shall take effect in 120

days.

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