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Senate of Pennsylvania
Session of 2021 - 2022 Regular Session


Posted: June 4, 2021 12:53 PM
From: Senator John I. Kane and Sen. Christine M. Tartaglione, Sen. Lindsey M. Williams, Sen. Nikil Saval
To: All Senate members
Subject: Improvements to the Construction Worker Misclassification Act
The construction industry is filled with hardworking people. These individuals work every day from sunrise to sunset to build our homes, offices, hospitals, roads, and other critical infrastructure. This industry employs over 230,000 individuals and has an economic impact of over $1 billion in Pennsylvania, according to the U.S. Bureau of Labor Statistics.
Construction jobs should be good, family-sustaining jobs with benefits to all Pennsylvanians; however, some contractors intentionally misclassify construction workers as independent contractors. This misclassification cheats workers out of salaries, benefits, and important worker protections like unemployment and workers compensation. Misclassified workers do not qualify for sick pay. Misclassified workers are not guaranteed paid time off. Misclassified workers are not protected by OSHA. Despite completing the exact same work, misclassified workers receive many fewer protections than their correctly-classified peers. 
To address this issue, the General Assembly passed Act 72 of 2010, the Construction Workplace Misclassification Act. This legislation prohibits employers from misclassifying workers as independent contractors, using several data points to determine if a worker is an employee or independent contractor. However, the act was rarely enforced from 2011-2014. Since 2015, enforcement has increased -- 777 employers have been found in violation of Act 72, and the Department of Labor and Industry has levied $2.39 million in fines. Earlier this year, the Delaware County District Attorney and the Attorney General of Pennsylvania also filed the first criminal charges under Act 72 against a dry wall contractor. 
 Despite the stepped-up enforcement, workers are still being misclassified and they’re losing out on wages and benefits owed to them. Following their first criminal charge, we teamed up with the Attorney General’s office and Delaware County District Attorney to discuss what changes are needed. Our legislation would strengthen and improve Act 72 by increasing penalties on contractors. It would also expand the purview of the Attorney General and District Attorney to investigate and prosecute worker misclassification. We want to make sure hard-working Pennsylvanians get paid what they deserve.  
The specific changes we are proposing include:
  1. Add a definition of Debar to Act 72 to allow contractors to be debarred from Commonwealth contracting opportunities and require the Department of Labor and Industry (DLI) to debar them either for a period of time or permanently, if they repeatedly violate Act 72.
  2. Requires DLI to impose administrative penalties for violations of the act.
  3. Requires DLI to refer cases to the Office of Attorney General (OAG) if it is a second or subsequent violation of Act 72 by an employer.
  4. Allows the OAG to initiate a criminal investigation and prosecution of violations of this act without a referral by DLI.
  5. Allows DLI and OAG to seek penalties upstream against contractors that hire subcontractors who violate Act 72.
  6. Enhanced penalties for violations of Act 72 including a Misdemeanor 3 for a first violation and a Felony 3 penalty for second and subsequent violations.
  7. Every employer subject to this act must place an informational poster at construction sites in a highly visible and accessible place to workers.
Misclassifying employees as independent contractors is theft. Employers who misclassify their workers take advantage of them, steal worker wages and benefits and ignore proper safety protocols and training. Our legislation will prevent the continued exploitation of workers through misclassification, and strengthen our existing statutes to protect Pennsylvania’s construction industry.
Please join us in co-sponsoring this important legislation. 

Introduced as SB817