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                                                      PRINTER'S NO. 1013



No. 750 Session of 2007

           MAHER, MARCH 22, 2007


                                     AN ACT

     1  Prohibiting employment of illegal aliens; requiring
     2     participation in the Basic Pilot Program as a condition for
     3     Commonwealth contracts or grants; prohibiting business tax
     4     deductions for certain compensation; requiring suspension of
     5     licenses, registrations and certificates of incorporation
     6     under certain circumstances; and authorizing a private cause
     7     of action.

     8     The General Assembly finds that:
     9         (1)  Employers in this Commonwealth who employ
    10     unauthorized aliens have systematically distorted the labor
    11     market of this Commonwealth by reducing wages, adversely
    12     affecting working conditions, evading taxes and reducing the
    13     number of jobs available to those who are lawfully entitled
    14     to employment in this Commonwealth.
    15         (2)  The United States has established and maintains a
    16     national program for the electronic verification of work
    17     authorization, the Basic Pilot Program, which enables
    18     employers to promptly and accurately verify the employment

     1     eligibility of all job applicants.
     2         (3)  It is in the best interests of and will serve and
     3     benefit the health, safety and welfare of the public and law-
     4     abiding business entities to adopt policies and procedures to
     5     deter and prevent the employment of unauthorized aliens.
     6         (4)  The Federal Government expressly permits state
     7     governments to sanction the employers of unauthorized aliens
     8     through licensing and other similar restrictions.
     9     The General Assembly of the Commonwealth of Pennsylvania
    10  hereby enacts as follows:
    11  Section 1.  Short title.
    12     This act shall be known and may be cited as the Fair
    13  Employment Act.
    14  Section 2.  Definitions.
    15     The following words and phrases when used in this act shall
    16  have the meanings given to them in this section unless the
    17  context clearly indicates otherwise:
    18     "Basic Pilot Program."  The electronic verification of work
    19  authorization program of the Illegal Immigration Reform and
    20  Immigrant Responsibility Act of 1996 (Public Law 104-208, 110
    21  Stat. 3009-546) which is operated by the Department of Homeland
    22  Security.
    23     "Business entity."  An individual, corporation, partnership,
    24  limited liability company or other legal entity, whether for
    25  profit or not for profit, who has applied for, holds or benefits
    26  from any registration.
    27     "Contractor."  A person, employer or business entity that
    28  enters into an agreement to perform any service or work or to
    29  provide a certain product in exchange for valuable
    30  consideration.
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     1     "Employee."  A person performing or applying for work or
     2  service of any kind or character for hire.
     3     "Employer."  A business entity which employs or seeks to
     4  employ a person for hire. If there are two or more putative
     5  employers, the business entity taking a business tax deduction
     6  for the employee in question shall be considered the employer of
     7  that person for the purposes of this act.
     8     "Employment."  The act of employing or of being employed,
     9  engaged or hired.
    10     "Government entity."  The Commonwealth or any of its
    11  political subdivisions. The term includes any agency, authority,
    12  board or commission of the Commonwealth or any of its political
    13  subdivisions.
    14     "Registration."  Any license, permit, registration or
    15  certificate granted or provided by a government entity.
    16     "Unauthorized alien."  An alien who does not have the legal
    17  right or authorization under Federal law to work in the United
    18  States.
    19     "Work."  A job, task, employment, labor, personal service or
    20  any other activity for which compensation is provided, expected
    21  or due, including activities conducted by business entities.
    22  Section 3.  Prohibitions.
    23     (a)  Employment.--It is unlawful for any employer to employ,
    24  or employer or business entity to permit the employment of, an
    25  unauthorized alien.
    26     (b)  Affirmation for initial registration.--As a condition
    27  for initial registration, a business entity shall provide to the
    28  government entity:
    29         (1)  an affidavit that the business entity is not an
    30     employer; or
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     1         (2)  an affidavit affirming that the business entity does
     2     not knowingly employ any person who is an unauthorized alien
     3     as well as an affidavit and supporting documentation that the
     4     business entity has enrolled and is an active participant in
     5     the Basic Pilot Program.
     6     (c)  Affirmation for continued registration.--As a condition
     7  of the periodic renewal of a registration, a business entity
     8  shall comply with subsection (b) as if applying for initial
     9  registration.
    10     (d)  Change of status.--A business entity which complied with
    11  subsection (b)(1) as a condition of any initial registration
    12  under subsection (b) or continued registration under subsection
    13  (c) and, during that registration becomes an employer, shall
    14  comply with subsection (b)(2).
    15     (e)  Awards.--As a condition for the award of any
    16  Commonwealth contract or grant to an employer for which the
    17  value of employment, labor or personal service shall exceed
    18  $10,000, the employer shall provide documentation affirming its
    19  enrollment and participation in the Basic Pilot Program.
    20     (f)  Government entities.--All government entities shall
    21  enroll and actively participate in the Basic Pilot Program.
    22     (g)  Verification.--An employer participating in the Basic
    23  Pilot Program shall verify the employment eligibility of every
    24  employee in the employer's hire whose employment commences after
    25  the employer enrolls in the Basic Pilot Program.
    26     (h)  Tax deduction.--Compensation, whether in money or in
    27  kind or in services, provided to any unauthorized alien shall
    28  not be allowed as a business expense deduction from any income
    29  or business tax of the Commonwealth.
    30     (i)  Violations.--Any business entity operating within this
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     1  Commonwealth in violation of this act shall have all
     2  registrations suspended under subsection (j).
     3     (j)  Enforcement.--The Secretary of State shall enforce the
     4  requirements of this section. The following apply:
     5         (1)  An enforcement action shall be initiated by means of
     6     a written, signed complaint to the secretary's office
     7     submitted by any government entity, business entity or
     8     resident. A valid complaint shall include an allegation which
     9     describes the alleged violator as well as the actions
    10     constituting the violation and the date and location where
    11     the actions occurred.
    12         (2)  A complaint which alleges a violation on the basis
    13     of national origin, ethnicity or race shall be deemed invalid
    14     and shall not be enforced.
    15         (3)  Upon receipt of a valid complaint, the secretary
    16     shall, within three business days, request information from
    17     the business entity which is the subject of the complaint,
    18     which may include any of the following:
    19             (i)  Copies of any information provided to a
    20         government entity under subsection (b), (c) or (d).
    21             (ii)  Identity information concerning any employees
    22         alleged to be unauthorized aliens.
    23             (iii)  Verification of the work authorization of
    24         aliens provided to the employer through the Basic Pilot
    25         Program.
    26         (4)  The secretary shall submit identity data required by
    27     the Federal Government to verify, pursuant to the Illegal
    28     Immigration Reform and Immigrant Responsibility Act of 1996
    29     (Public Law 104-208, 110 Stat. 3009-546), the immigration
    30     status and work authorization of employees alleged to be
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     1     unauthorized aliens and shall provide the employer with
     2     written confirmation of that verification.
     3         (5)  The secretary shall order all government entities to
     4     suspend the registration of any business entity that fails to
     5     correct a violation of this act.
     6         (6)  The correction of a violation with respect to the
     7     employment of an unauthorized alien shall include any of the
     8     following actions:
     9             (i)  The employer terminates the unauthorized alien's
    10         employment.
    11             (ii)  The employer, after acquiring additional
    12         information from the employee, requests a secondary or
    13         additional verification by the Federal Government of the
    14         employee's authorization under the procedures of the
    15         Basic Pilot Program. While this verification is pending,
    16         any enforcement action shall be tolled.
    17             (iii)  The employer attempts to terminate the
    18         unlawful worker's employment and the termination is
    19         challenged in a court of this Commonwealth. While the
    20         employer pursues the termination of the unauthorized
    21         alien's employment in such forum, any enforcement action
    22         shall be tolled.
    23         (7)  A general contractor shall not be in violation of
    24     this act with respect to any alleged unauthorized alien
    25     employed by a subcontractor or independent contractor hired
    26     by the general contractor if, prior to the alleged violation,
    27     the general contractor verified that the subcontractor or
    28     independent contractor was enrolled in the Basic Pilot
    29     Program by requiring the subcontractor or independent
    30     contractor to show documentary evidence of such enrollment
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     1     provided by the Federal Government.
     2         (8)  A suspension under this section shall terminate one
     3     business day after a legal representative of the business
     4     entity submits, at an office designated by the secretary, all
     5     of the following:
     6             (i)  Documentation acceptable to the secretary which
     7         confirms that the business entity has enrolled in and is
     8         participating in the Basic Pilot Program.
     9             (ii)  A sworn affidavit stating that the violation
    10         has ended. The affidavit shall include a description of
    11         the specific measures and actions taken by the business
    12         entity to end the violation and shall, if applicable,
    13         include the name, address and other adequate identifying
    14         information for any unauthorized aliens related to the
    15         complaint.
    16         (9)  For a second or subsequent violation, the secretary
    17     shall order all government entities to suspend the
    18     registration of any business entity for a minimum period of
    19     20 days. After the end of the suspension period, and upon
    20     receipt of the prescribed affidavit and documentation, the
    21     secretary shall order all government entities to reinstate
    22     the registration of any business entity. The secretary shall
    23     forward the affidavit, complaint and associated documents to
    24     the Bureau of Immigration and Customs Enforcement of the
    25     Department of Homeland Security.
    26         (10)  This section shall be subject to 2 Pa.C.S. Chs. 5
    27     Subch. A (relating to practice and procedure of Commonwealth
    28     agencies) and 7 Subch. A (relating to judicial review of
    29     Commonwealth agency action).
    30     (k)  State funding.--Any government entity that fails to
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     1  comply with this section and the directives from the secretary
     2  regarding the failure of any business entity to enroll in the
     3  Basic Pilot Program shall be ineligible for State funding.
     4     (l)  Procedure.--This act shall not be construed to deny any
     5  procedural mechanisms included in the Basic Pilot Program.
     6     (m)  Federal determination.--The determination of whether an
     7  employee is an unauthorized alien shall be made by the Federal
     8  Government under the Illegal Immigration Reform and Immigrant
     9  Responsibility Act of 1996. A determination of the status of an
    10  employee by the Federal Government shall create a rebuttable
    11  presumption as to that employee's status in any judicial
    12  proceedings brought pursuant to this act. The court may take
    13  judicial notice of any verification of the employee previously
    14  provided by the Federal Government and may request the Federal
    15  Government to provide automated or testimonial verification
    16  under the Illegal Immigration Reform and Immigrant
    17  Responsibility Act of 1996.
    18  Section 4.  Ordinance.
    19     A political subdivision of this Commonwealth may enact any
    20  ordinance prohibiting the employment of unauthorized aliens or
    21  other unlawful workers, may deny registration to employers who
    22  employ unauthorized aliens and may allow lawful employees to
    23  bring suit against such employers to recover treble damages and
    24  reasonable attorney fees. A political subdivision of this
    25  Commonwealth may enact any ordinance restricting the rental of
    26  housing to an alien unlawfully present in the United States.
    27  Section 5.  Construction.
    28     This act shall be construed so as to be fully consistent with
    29  Federal immigration and labor laws.
    30  Section 20.  Severability.
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     1     The provisions of this act are severable. If any provision of
     2  this act or its application to any person or circumstance is
     3  held invalid, the invalidity shall not affect other provisions
     4  or applications of this act which can be given effect without
     5  the invalid provision or application.
     6  Section 21.  Effective date.
     7     This act shall take effect in 60 days.

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