THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY GALLOWAY, METCALFE, BARBIN, BARRAR, B. BOYLE, BRENNAN, BURNS, BUXTON, CARROLL, CUTLER, DAVIS, DEASY, FREEMAN, GEIST, GEORGE, GERBER, GERGELY, GIBBONS, HARHAI, HARKINS, HARRIS, HENNESSEY, HUTCHINSON, W. KELLER, KORTZ, LONGIETTI, MAHONEY, MANN, MUNDY, MURPHY, MUSTIO, PETRARCA, RAPP, READSHAW, REICHLEY, SABATINA, SANTARSIERO, STEVENSON, SWANGER, VULAKOVICH, WAGNER, WATSON, WHITE, GABLER, HORNAMAN, PERRY, KNOWLES, GOODMAN, D. COSTA, MATZIE, K. SMITH, KAVULICH, DAY, SCHRODER, MURT, DeLUCA, FARRY AND M. SMITH, FEBRUARY 1, 2011

AS REPORTED FROM COMMITTEE ON LABOR AND INDUSTRY, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 20, 2012   

AN ACT

Requiring construction industry employers to verify the Social

Security numbers of all employees for purposes of wage

reporting and employment eligibility; providing for the

powers and duties of the Department of Labor and Industry;

prescribing sanctions; and establishing good faith immunity

under certain circumstances.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Construction

Industry Employment Verification Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly states otherwise:

"Construction."  Erection, reconstruction, demolition,

alteration, modification, custom fabrication, building,

assembling, site preparation and repair work or maintenance work

done on any real property or premises under contract, whether or

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not the work is for a public body or paid for from public funds.

"Construction industry employer."  An individual,

partnership, association, joint stock company, corporation,

business trust or any other business entity, person or group of

persons that acts directly or indirectly to employ persons to

provide or perform services in the construction industry for

remuneration.

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

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Commonwealth.

"Employee."  An individual for whom a construction industry

employer 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.

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

U.S.C. § 1101 et seq.).

"NVS."  The Social Security Number Verification Service

operated by the Social Security Administration.

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

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

Prevailing Wage Act.

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

Commonwealth.

"Willful."  Action or conduct undertaken intentionally or

with reckless disregard for or deliberate ignorance of the

requirements and obligations established by this act.

Section 3.  Verification.

(a)  Duty of construction industry employers.--

(1)  Except as set forth in paragraph (2), a construction

industry employer on a public work shall participate in NVS

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and EVP and shall do the following, subject to the

requirements of Federal law governing the use of NVS and EVP:

(i)  within 60 days following the effective date of

this section, use NVS to verify, for wage reporting

purposes, the Social Security numbers of its employees in

existence on the effective date of this section; and

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(ii)  within three days following the first day of

employment of a new employee, use EVP to verify for

employment eligibility purposes the Social Security

number of the new employee.; and

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(iii)  as a precondition of being awarded a contract

for public work and prior to execution of the contract,

use NVS to verify, for wage reporting purposes, the

Social Security numbers of its employees and shall within

three days following the first day of employment of a new

employee, use EVP to verify for employment eligibility

purposes the Social Security number of the new employee.

(2)  This subsection does not apply to an employee who is

authorized to work under Federal law in the United States

without a Social Security number.

(b)    Verification statements.--A construction industry

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employer shall submit a verification statement annually to the

Department of Revenue with its State income tax return. The

statement shall be on a form prescribed by the Department of

Revenue and shall comply with the following requirements:

(1)  The statement shall represent that the construction

industry employer has verified the Social Security numbers of

its employees through NVS or EVP, as appropriate, as required

by subsection (a).

(2)  The statement shall include a certification that the

information in the statement is true and correct and that the

person signing the statement understands that the submission

of false or misleading information in connection with the

verification shall subject the person and the construction

industry employer to sanctions provided by law.

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

the construction industry employer who has sufficient

knowledge and authority to make the representation and

certifications contained in the statement.

(3)  This subsection applies only to those employees that

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a construction industry employer utilizes on a public work.

(b)  (Reserved).

(c)  Discrimination prohibited.--In conducting the Social

Security number verification required by this section, a

construction industry employer shall not discriminate against an

employee on the basis of race, ethnicity, color or national

origin.

Section 4.  Violations.

It is a violation of this act for a construction industry

employer on a public work to:

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(1)  Employ an employee whose Social Security number has

not been verified by NVS or EVP as required by this act 

except during a period of time in which the employer is

awaiting resolution by the Federal Government of a wage

reporting or employment eligibility issue or dispute

regarding the employee.

(2)  Make a false statement or misrepresentation in a

verification statement required by statement made to the

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department in its enforcement of this act.

Section 5.  Enforcement and sanctions.

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

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the provisions of this act. The department may establish through

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regulation a process that ensures that construction industry

employers are notified of the requirements of this act.

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

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shall accept, review and investigate in a timely manner any

credible complaint that a construction industry employer has

violated a provision of this act.

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

this act, the secretary department shall conduct complaint-based

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and random audits of construction industry employers in this

Commonwealth. In conducting such audits, the secretary 

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department shall utilize NVS and EVP to verify the Social

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Security numbers for wage reporting purposes and employment

eligibility of employees in accordance with Federal law

governing the use of those systems.

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

violation of section 274A of the INA (8 U.S.C. § 1324a) or of

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this act:

(1)  A construction industry employer that violates

section 4(1) of this act:

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(1)  A construction industry employer shall receive a

warning letter from the department detailing the violation

for a first offense.

(2)  A construction industry employer that violates 

section 274A of the INA or engages in the violation described

in section 4(1) may be required, at the discretion of the

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secretary, to forfeit all licenses or certifications issued

by the Commonwealth that authorize the construction industry

employer to conduct business in this Commonwealth, including

corporate articles and franchises for a period of up to 90

days for a second violation and for a period of up to three

years for a subsequent violation.

(2)  A construction industry employer that willfully

debarred from public work, at the discretion of the

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secretary, for 30 days for a second violation and not less

than 180 days, but up to one year for a subsequent violation.

(3)  A construction industry employer that willfully 

violates section 274A of the INA or willfully engages in the

violation described in section 4(1) shall be required to

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forfeit all licenses or certifications issued by the

Commonwealth that authorize the construction industry

employer to conduct business in this Commonwealth, including

corporate articles and franchises, for a period of 3 years.

(3)  The Office of Attorney General shall have the same

authority to revoke corporate articles and franchises under

this act as it has under 15 Pa.C.S. § 503 (relating to

actions to revoke corporate franchises). debarred from public

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work for a period of three years.

(4)  A construction industry employer that violates

section 4(2) is subject to an administrative penalty of up to

$2,000 for each violation.

(e)  Notice and appeal.--Actions taken under subsection (d)

shall be subject to the notice, appeal and other provisions of 2

Pa.C.S. (relating to administrative law and procedure).

Section 6.  Protection from retaliation.

(a)    General Rule.--It shall be unlawful for a construction

industry employer 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 act; or

(2)  reports or makes a complaint regarding the violation

of this act to a construction industry employer or

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 three years 180

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days from the date the employee knew of the retaliation or

discrimination.

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

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 7.  Good faith immunity.

A construction industry employer that relies in good faith on

NVS and EVP procedures to verify the Social Security number of

employees shall be immune from the sanctions authorized under

section 5 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 construction

industry employer. A construction industry employer that can

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produce written acknowledgment provided by an applicable Federal

agency of use of EVP or of NVS is considered to have acted in

good faith.

Section 8 20.  Effective date.

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This act shall take effect July 1, 2011 January 1, 2013.

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