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| PRIOR PRINTER'S NOS. 645, 992 | PRINTER'S NO. 1242 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY WARD, BREWSTER, SCARNATI, McILHINNEY, EICHELBERGER, D. WHITE, VOGEL, RAFFERTY, BRUBAKER, ORIE, FONTANA, ALLOWAY, GREENLEAF, WAUGH, ARGALL, PICCOLA AND WASHINGTON, FEBRUARY 24, 2011 |
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| AS AMENDED ON THIRD CONSIDERATION, MAY 23, 2011 |
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| AN ACT |
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1 | Amending Title 62 (Procurement) of the Pennsylvania Consolidated |
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 | prescribing penalties; and establishing good faith immunity |
6 | under certain circumstances. |
7 | The General Assembly of the Commonwealth of Pennsylvania |
8 | hereby enacts as follows: |
9 | Section 1. Chapter 39 of Title 62 of the Pennsylvania |
10 | Consolidated Statutes is amended by adding a subchapter to read: |
11 | SUBCHAPTER F |
12 | EMPLOYMENT VERIFICATION |
13 | Sec. |
14 | 3951. Scope of subchapter. |
15 | 3952. Definitions. |
16 | 3953. Verification. |
17 | 3954. Violations. |
18 | 3955. Enforcement and sanctions. |
19 | 3956. Protection from retaliation. |
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1 | 3957. Good faith immunity. |
2 | § 3951. Scope of subchapter. |
3 | This subchapter relates to verification of employment on |
4 | certain public works projects. |
5 | § 3952. Definitions. |
6 | The following words and phrases when used in this subchapter |
7 | shall have the meanings given to them in this section unless the |
8 | context clearly indicates otherwise: |
9 | "Department." The Department of Labor and Industry of the |
10 | Commonwealth. |
11 | "Employee." An individual hired by a public works contractor | <-- |
12 | after the effective date of this subchapter for whom a public |
13 | works contractor is required by law to file a Form W-2 with the |
14 | Internal Revenue Service. |
15 | "EVP." The E-Verify Program operated by the Department of |
16 | Homeland Security that electronically verifies employment |
17 | eligibility for employees. |
18 | "INA." The Immigration and Nationality Act (66 Stat. 163, 8 |
19 | U.S.C. § 1101 et seq.). |
20 | "NVS." The Social Security Number Verification Service | <-- |
21 | operated by the Social Security Administration. |
22 | "Public body." The Commonwealth of Pennsylvania, any of its |
23 | political subdivisions, any authority created by the General |
24 | Assembly of the Commonwealth and any instrumentality or agency |
25 | of the Commonwealth. |
26 | "Public work." Construction, reconstruction, demolition, |
27 | alteration and repair work other than maintenance work, done |
28 | under contract and paid for in whole or in part out of the funds |
29 | of a public body where the estimated cost of the total project |
30 | is in excess of $25,000. The term shall not include work |
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1 | performed under a rehabilitation or manpower training program. |
2 | "Public works contractor." A contractor that provides goods |
3 | or services under a contract involving a public works project. |
4 | "Public works project." A project involving a public work. |
5 | "Secretary." The Secretary of Labor and Industry of the |
6 | Commonwealth. |
7 | "Subcontractor." A person, other than a natural person, |
8 | regardless of its tier, including, but not limited to, a |
9 | staffing agency, that performs work for a public works |
10 | contractor under a contract for a public work. |
11 | "Willful." Action or conduct undertaken intentionally or |
12 | with reckless disregard for or deliberate ignorance of the |
13 | requirements and obligations established by this subchapter. |
14 | § 3953. Verification. |
15 | (a) General rule.--As a precondition of being awarded a |
16 | contract for a public work, and prior to the execution of the |
17 | contract, a public works contractor shall provide the |
18 | Commonwealth agency public body with which the contract will be | <-- |
19 | made a verification statement in which it shall represent the |
20 | following subject to and consistent with Federal immigration | <-- |
21 | law: |
22 | (1) The public works contractor has verified the | <-- |
23 | employment eligibility of all of its then-existing employees |
24 | for wage reporting purposes through NVS in accordance with |
25 | Federal law governing the use of NVS. |
26 | (2) (1) The public works contractor will verify the | <-- |
27 | employment eligibility of a new employee for employment |
28 | purposes prior to the commencement of work by the new |
29 | employee through EVP in accordance with Federal law governing |
30 | the use of EVP. |
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1 | (3) (2) The public works contractor will provide the | <-- |
2 | Commonwealth agency public body with the verification | <-- |
3 | statement required under subsection (b) from each |
4 | subcontractor it uses or intends to use on the public works |
5 | project prior to the commencement of any work by the |
6 | subcontractor on the public works project. |
7 | (4) (3) The public works contractor will provide a | <-- |
8 | certification from the department verifying that the |
9 | contractor has not previously violated this subchapter. |
10 | (b) Subcontractor verification statements.--Prior to the |
11 | execution of a subcontract with a public works contractor, a |
12 | subcontractor shall provide the public works contractor with a |
13 | verification statement containing substantially the same |
14 | information about the subcontractor as required under subsection |
15 | (a) about the public works contractor. The subcontractor shall |
16 | submit the verification statement to the contractor prior to the |
17 | commencement of any work by the subcontractor on the public |
18 | works project. |
19 | (c) Form.--The verification statement required by this |
20 | section shall be on a form prescribed by the secretary and shall |
21 | comply with the following additional requirements: |
22 | (1) The statement shall include a certification that the |
23 | information in the statement is true and correct and that the |
24 | person signing the statement understands that the submission |
25 | of false or misleading information in connection with the |
26 | verification shall subject the person and the public works |
27 | contractor or subcontractor, as the case may be, to sanctions |
28 | provided by law. |
29 | (2) The statement shall be signed by a representative of |
30 | the public works contractor or subcontractor, as applicable, |
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1 | who has sufficient knowledge and authority to make the |
2 | representations and certifications contained in the |
3 | statement. |
4 | (d) Discrimination prohibited.--In conducting the employment |
5 | eligibility required by this section, a public works contractor |
6 | or its subcontractor shall not discriminate against any employee |
7 | on the basis of race, ethnicity, color or national origin. |
8 | § 3954. Violations. |
9 | The following shall constitute a violation of this |
10 | subchapter: |
11 | (1) Employment by a public works contractor or |
12 | subcontractor of an employee whose employment eligibility has |
13 | not been verified by NVS or EVP as required by this | <-- |
14 | subchapter. |
15 | (2) Use by a public works contractor of a subcontractor |
16 | on a public works project prior to the submission by the |
17 | subcontractor of a verification statement required by this |
18 | subchapter. |
19 | (3) Commencement of work by a subcontractor on a public |
20 | works project prior to submitting to the public works |
21 | contractor a verification statement required by this |
22 | subchapter. |
23 | (4) Making a false statement or misrepresentation in a |
24 | verification statement required by this subchapter. |
25 | § 3955. Enforcement and sanctions. |
26 | (a) General rule.--The secretary shall enforce the |
27 | provisions of this subchapter. |
28 | (b) Investigation of complaints.--The secretary shall |
29 | accept, review and investigate in a timely manner any credible |
30 | complaint that a public works contractor or subcontractor has |
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1 | violated a provision of this subchapter. |
2 | (c) Audits.--To ensure compliance with the requirements of |
3 | this subchapter, the secretary shall conduct complaint-based and |
4 | random audits of public works contractors and subcontractors in |
5 | this Commonwealth. In conducting such audits, the secretary |
6 | shall utilize NVS and EVP to verify the employment eligibility | <-- |
7 | of employees for wage reporting purposes and employment |
8 | eligibility, as appropriate, in accordance with Federal law |
9 | governing the use of NVS and EVP evaluate the process utilized | <-- |
10 | by the public works contractors and subcontractors in complying |
11 | with the requirements of this subchapter. |
12 | (d) Sanctions.--A public works contractor or subcontractor |
13 | that willfully violates section 274A of the INA (8 U.S.C. § | <-- |
14 | 1324a) or willfully engages in violations described in section |
15 | 3954(1), (2) or (3): |
16 | (1) For a first offense relating to the public contract, |
17 | a warning letter may be issued by the secretary detailing the |
18 | violation. The letter shall be posted on the department's |
19 | Internet website. |
20 | (2) For a second offense relating to the public |
21 | contract: |
22 | (i) At the discretion of the Commonwealth agency | <-- |
23 | public body with which the public works contractor has | <-- |
24 | contracted, may be subject to termination of the contract |
25 | by the Commonwealth agency public body without recourse | <-- |
26 | against or penalty to the Commonwealth agency public body | <-- |
27 | and a fine of up to $2,000. The right of the Commonwealth | <-- |
28 | agency public body to terminate the contract under this | <-- |
29 | subparagraph may not be waived. |
30 | (ii) At the discretion of the public works |
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1 | contractor with whom the subcontractor has contracted, |
2 | may be subject to termination of the subcontract by the |
3 | public works contractor without recourse against or |
4 | penalty to the public works contractor. The right of the |
5 | public works contractor to terminate the subcontract |
6 | under this subparagraph may not be waived. |
7 | (3) For a third or subsequent offense relating to the |
8 | public contract, at the discretion of the secretary, in |
9 | addition to the sanctions in paragraph (2), shall be subject |
10 | to debarment under section 531 (relating to debarment or |
11 | suspension) for one year. |
12 | § 3956. Protection from retaliation. |
13 | (a) General rule.--It shall be unlawful for a public works |
14 | contractor or subcontractor to discharge, threaten or otherwise |
15 | retaliate or discriminate against an employee regarding |
16 | compensation or other terms or conditions of employment because |
17 | the employee: |
18 | (1) participates in an investigation, hearing or inquiry |
19 | held by the secretary or any other governmental authority |
20 | under this subchapter; or |
21 | (2) reports or makes a complaint regarding the violation |
22 | of this subchapter to a public works contractor, |
23 | subcontractor or governmental authority. |
24 | (b) Actions.-- |
25 | (1) Any employee who suffers retaliation or |
26 | discrimination in violation of this section may bring an |
27 | action in a court of common pleas in accordance with |
28 | established civil procedures of this Commonwealth. |
29 | (2) The action must be brought within three years from |
30 | the date the employee knew of the retaliation or |
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1 | discrimination. |
2 | (c) Relief.--If an employee prevails in an action commenced |
3 | under this section, the employee shall be entitled to the |
4 | following relief: |
5 | (1) Reinstatement of the employee, if applicable. |
6 | (2) Restitution equal to three times the amount of the |
7 | employee's wages and fringe benefits calculated from the date |
8 | of the violation or discrimination. |
9 | (3) Reasonable attorney fees and costs of the action. |
10 | (4) Any other legal and equitable relief as the court |
11 | deems appropriate. |
12 | § 3957. Good faith immunity. |
13 | A public works contractor or subcontractor that relies in |
14 | good faith on NVS and EVP procedures to verify the employment | <-- |
15 | eligibility of employees shall be immune from the sanctions |
16 | authorized under section 3955 (relating to enforcement and |
17 | sanctions) in the event that incorrect information has been |
18 | provided to the public works contractor or subcontractor. |
19 | Section 2. This act shall take effect in 60 days. |
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