PRINTER'S NO. 1348
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1170
Session of
2019
INTRODUCED BY MACKENZIE, GALLOWAY, BARRAR, T. DAVIS, KEEFER,
MILLARD, NEILSON AND READSHAW, APRIL 9, 2019
REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, APRIL 9, 2019
AN ACT
Prohibiting the employment of unauthorized employees; requiring
construction industry employers to verify the Social Security
numbers of employees; and imposing penalties.
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 Employee 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 indicates otherwise:
"Agency." An agency, department, board or commission of the
Commonwealth or of a municipality that issues a license for
purposes of operating a business in this Commonwealth.
"Construction industry." The industry which engages in the
erection, reconstruction, demolition, alteration, modification,
custom fabrication, building, assembling, site preparation and
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repair work or maintenance work done on real property or
premises under a contract, including work for a public body or
work paid for from public funds.
"Construction industry employer." An individual, entity or
organization that transacts business in this Commonwealth in the
construction industry, has a license issued by an agency and
employs at least one employee in this 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.
"Employer." A construction industry employer.
"E-Verify program." The Internet-based program administered
by the United States Department of Homeland Security and the
United States Social Security Administration which allows
employers to verify an employee's work-authorization status. The
term includes any successor program.
"License." A permit, certificate, approval, registration,
charter or similar form of authorization that is required by law
and issued by an agency for the purposes of operating a business
in this Commonwealth. The term includes articles of
incorporation and partnership registrations. The term does not
include a professional or occupational license or certificate
granted to an individual to engage in a profession or trade.
"Unauthorized employee." An individual who does not have the
legal right or authorization under Federal law to work in the
United States.
Section 3. Prohibited employment.
(a) Prohibition.--An employer may not knowingly employ an
unauthorized employee.
(b) Verification.--On and after the effective date of this
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section, each employer who hires an employee shall verify the
employment eligibility of the employee through the E-Verify
program and shall keep a record of the verification for the
duration of the employee's employment or three years, whichever
is longer.
Section 4. Procedures, presumptions and defenses.
(a) Form.--The Attorney General shall prescribe a complaint
form for an individual to allege a violation of section 3(a). An
individual who knowingly provides materially false information
in a complaint form under this subsection shall be subject to
punishment under 18 Pa.C.S. § 4904 (relating to unsworn
falsification to authorities).
(b) Duty to investigate.--Upon receipt of a complaint on a
prescribed complaint form alleging that an employer knowingly
employs an unauthorized employee, the Attorney General shall
investigate whether the employer has violated section 3(a).
(c) Authority to investigate.--The Attorney General may
investigate a complaint that is not submitted on a prescribed
complaint form, including an anonymous complaint.
(d) Prohibition.--The Attorney General may not investigate a
complaint that is based solely on race, color or national
origin.
(e) Verification.--If investigating a complaint, the
Attorney General shall verify the work authorization of the
alleged unauthorized employee with the Federal Government under
section 642(c) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (Public Law 104-208, 8 U.S.C. §
1373(c)). A Commonwealth or local official may not attempt to
independently make a final determination on whether an
unauthorized employee is authorized to work in the United
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States.
(f) Notification and action.--If, after an investigation,
the Attorney General determines that the alleged employee is an
unauthorized employee, the Attorney General shall do all of the
following:
(1) Notify United States Immigration and Customs
Enforcement of the unauthorized employee.
(2) Bring an action against the employer in the county
where the unauthorized employee is or was employed by the
employer. The Attorney General shall not bring an action
against an employer for a violation that occurred before the
effective date of this section.
(g) Expedited action.--Upon docketing, the court shall
expedite the action, including assigning the hearing at the
earliest practicable date.
(h) Determination.--In determining whether an employee is an
unauthorized employee, the court shall consider only the Federal
Government's determination under section 642(c) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996. The
Federal Government's determination shall create a rebuttable
presumption of the employee's status. The court may take
judicial notice of the Federal Government's determination and
may request the Federal Government to provide automated or
testimonial verification under section 642(c) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996.
(i) Rebuttable presumption.--Proof that the employer
verified the employment authorization of an employee through the
E-Verify program shall create a rebuttable presumption that an
employer did not knowingly employ an unauthorized employee.
(j) Affirmative defense.--For the purposes of this section,
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it shall be an affirmative defense if the employer demonstrates
that it has complied in good faith with section 274A(b) of the
Immigration and Nationality Act (66 Stat. 163, 8 U.S.C. §
1324a(b)). An employer shall be considered to have complied with
section 274A(b) of the Immigration and Nationality Act,
notwithstanding an isolated, sporadic or accidental technical or
procedural failure to meet the requirements, if the employer
establishes a good faith attempt to comply with section 274A(b)
of the Immigration and Nationality Act.
Section 5. Penalties and remedial orders.
(a) Order.--Upon a finding of a violation under section
3(a), the court shall order all of the following:
(1) The employer to terminate the employment of each
unauthorized employee.
(2) The employer to a three-year probationary period for
each business location where the unauthorized employee
performed work. During the probationary period the employer:
(i) shall file quarterly reports with the Attorney
General of each new employee who is hired by the employer
at the business location where the unauthorized employee
performed work; and
(ii) may not knowingly employ an unauthorized
employee.
(3) The employer, within three business days, to verify
in writing to the Attorney General that the employer has
terminated the employment of each unauthorized employee in
this Commonwealth.
(4) Agencies to suspend each license that is held by the
employer if the employer fails to timely submit the
verification. Each license that is suspended under this
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paragraph shall remain suspended until the employer complies.
Notwithstanding any other law, on filing of the verification,
each license shall be reinstated immediately by the
appropriate agency. For the purposes of this paragraph, a
license that is subject to suspension under this paragraph
shall include each license that is held by the employer
specific to the business location where the unauthorized
employee performed work. If the employer does not hold a
license specific to the business location where the
unauthorized employee performed work, the court shall order
suspension of each license that is held by the employer
pertaining to operations anywhere within this Commonwealth.
(b) Duration.--The following shall apply:
(1) For a first violation of section 3(a), the court may
order the agency to suspend each license described under
subsection (a)(4) that is held by the employer for a period
not to exceed 10 business days.
(2) For a violation occurring during a three-year
probationary period under subsection (a)(2), the court may
order suspension for a term not to exceed one year.
(c) Factors.--In determining whether to order suspension or
the duration of a suspension, the court shall consider the
following factors:
(1) The number of unauthorized employees employed by the
employer.
(2) Any prior misconduct by the employer.
(3) The degree of harm resulting from the violation.
(4) Whether the employer made good faith efforts to
comply with any applicable requirements.
(5) The duration of the violation.
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(6) The role of the directors, officers or principals of
the employer in the violation.
(7) Any other factors the court deems appropriate.
Section 6. Effective date.
This act shall take effect in 60 days.
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