PRINTER'S NO.  896

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

858

Session of

2011

  

  

INTRODUCED BY METCALFE, BARRAR, CARROLL, CLYMER, CREIGHTON, CUTLER, DeLUCA, DUNBAR, EVERETT, FLECK, GIBBONS, GOODMAN, GROVE, HARHAI, HARRIS, HORNAMAN, HUTCHINSON, KAUFFMAN, KNOWLES, LONGIETTI, MARSHALL, MILLARD, MOUL, MULLERY, OBERLANDER, PETRI, PYLE, RAPP, READSHAW, REICHLEY, ROCK, SIMMONS, SONNEY, SWANGER, VULAKOVICH, WHITE, CHRISTIANA, PETRARCA, ELLIS, SCHRODER AND GILLEN, MARCH 1, 2011

  

  

REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, MARCH 1, 2011  

  

  

  

AN ACT

  

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Prohibiting employment of illegal aliens; requiring

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participation in the E-verify Program as a condition for

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Commonwealth contracts or grants; prohibiting business tax

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deductions for certain compensation; requiring suspension of

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licenses, registrations and certificates of incorporation

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under certain circumstances; and authorizing a private cause

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of action.

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The General Assembly finds that:

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(1)  Employers in this Commonwealth who employ

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unauthorized aliens have systematically distorted the labor

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market of this Commonwealth by reducing wages, adversely

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affecting working conditions, evading taxes and reducing the

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number of jobs available to those who are lawfully entitled

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to employment in this Commonwealth.

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(2)  The United States has established and maintains a

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national program for the electronic verification of work

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authorization, the E-verify Program, which enables employers

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to promptly and accurately verify the employment eligibility

 


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of all job applicants.

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(3)  It is in the best interests of and will serve and

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benefit the health, safety and welfare of the public and law-

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abiding business entities to adopt policies and procedures to

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deter and prevent the employment of unauthorized aliens.

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(4)  The Federal Government expressly permits state

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governments to sanction the employers of unauthorized aliens

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through licensing and other similar restrictions.

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The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  Short title.

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

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Employment Act.

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Section 2.  Definitions.

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The following words and phrases when used in this act shall

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have the meanings given to them in this section unless the

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context clearly indicates otherwise:

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"Business entity."  An individual, corporation, partnership,

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limited liability company or other legal entity, whether for

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profit or not for profit, who has applied for, holds or benefits

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from any registration.

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"Contractor."  A person, employer or business entity that

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enters into an agreement to perform any service or work or to

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provide a certain product in exchange for valuable

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consideration.

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"E-verify Program."  The electronic verification of work

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authorization program of the Illegal Immigration Reform and

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Immigrant Responsibility Act of 1996 (Public Law 104-208, 110

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Stat. 3009-546) which is operated by the Department of Homeland

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Security.

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"Employee."  A person performing or applying for work or

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service of any kind or character for hire.

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"Employer."  A business entity which employs or seeks to

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employ a person for hire. If there are two or more putative

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employers, the business entity taking a business tax deduction

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for the employee in question shall be considered the employer of

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that person for the purposes of this act.

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"Employment."  The act of employing or of being employed,

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engaged or hired.

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"Government entity."  The Commonwealth or any of its

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political subdivisions. The term includes any agency, authority,

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board or commission of the Commonwealth or any of its political

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subdivisions.

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"Registration."  Any license, permit, registration or

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certificate granted or provided by a government entity.

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"Unauthorized alien."  An alien who does not have the legal

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right or authorization under Federal law to work in the United

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States.

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"Work."  A job, task, employment, labor, personal service or

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any other activity for which compensation is provided, expected

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or due, including activities conducted by business entities.

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Section 3.  Prohibitions.

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(a)  Employment.--It is unlawful for any employer to employ,

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or employer or business entity to permit the employment of, an

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unauthorized alien.

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(b)  Affirmation for initial registration.--As a condition

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for initial registration, a business entity shall provide to the

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government entity:

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(1)  an affidavit that the business entity is not an

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employer; or

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(2)  an affidavit affirming that the business entity does

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not knowingly employ any person who is an unauthorized alien

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as well as an affidavit and supporting documentation that the

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business entity has enrolled and is an active participant in

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the E-verify Program.

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(c)  Affirmation for continued registration.--As a condition

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of the periodic renewal of a registration, a business entity

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shall comply with subsection (b) as if applying for initial

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registration.

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(d)  Change of status.--A business entity which complied with

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subsection (b)(1) as a condition of any initial registration

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under subsection (b) or continued registration under subsection

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(c) and, during that registration becomes an employer, shall

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comply with subsection (b)(2).

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(e)  Awards.--As a condition for the award of any

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Commonwealth contract or grant to an employer for which the

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value of employment, labor or personal service shall exceed

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$10,000, the employer shall provide documentation affirming its

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enrollment and participation in the E-verify Program.

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(f)  Government entities.--All government entities shall

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enroll and actively participate in the E-verify Program.

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(g)  Verification.--An employer participating in the E-verify

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Program shall verify the employment eligibility of every

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employee in the employer's hire whose employment commences after

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the employer enrolls in the E-verify Program.

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(h)  Tax deduction.--Compensation, whether in money or in

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kind or in services, provided to any unauthorized alien shall

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not be allowed as a business expense deduction from any income

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or business tax of the Commonwealth.

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(i)  Violations.--Any business entity operating within this

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Commonwealth in violation of this act shall have all

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registrations suspended under subsection (j).

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(j)  Enforcement.--The Secretary of State shall enforce the

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requirements of this section. The following apply:

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(1)  An enforcement action shall be initiated by means of

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a written, signed complaint to the secretary's office

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submitted by any government entity, business entity or

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resident. A valid complaint shall include an allegation which

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describes the alleged violator as well as the actions

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constituting the violation and the date and location where

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the actions occurred.

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(2)  A complaint which alleges a violation on the basis

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of national origin, ethnicity or race shall be deemed invalid

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and shall not be enforced.

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(3)  Upon receipt of a valid complaint, the secretary

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shall, within three business days, request information from

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the business entity which is the subject of the complaint,

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which may include any of the following:

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(i)  Copies of any information provided to a

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government entity under subsection (b), (c) or (d).

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(ii)  Identity information concerning any employees

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alleged to be unauthorized aliens.

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(iii)  Verification of the work authorization of

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aliens provided to the employer through the E-verify

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Program.

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(4)  The secretary shall submit identity data required by

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the Federal Government to verify, pursuant to the Illegal

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Immigration Reform and Immigrant Responsibility Act of 1996

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(Public Law 104-208, 110 Stat. 3009-546), the immigration

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status and work authorization of employees alleged to be

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unauthorized aliens and shall provide the employer with

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written confirmation of that verification.

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(5)  The secretary shall order all government entities to

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suspend the registration of any business entity that fails to

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correct a violation of this act.

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(6)  The correction of a violation with respect to the

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employment of an unauthorized alien shall include any of the

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following actions:

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(i)  The employer terminates the unauthorized alien's

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employment.

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(ii)  The employer, after acquiring additional

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information from the employee, requests a secondary or

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additional verification by the Federal Government of the

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employee's authorization under the procedures of the E-

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verify Program. While this verification is pending, any

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enforcement action shall be tolled.

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(iii)  The employer attempts to terminate the

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unlawful worker's employment and the termination is

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challenged in a court of this Commonwealth. While the

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employer pursues the termination of the unauthorized

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alien's employment in such forum, any enforcement action

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shall be tolled.

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(7)  A general contractor shall not be in violation of

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this act with respect to any alleged unauthorized alien

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employed by a subcontractor or independent contractor hired

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by the general contractor if, prior to the alleged violation,

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the general contractor verified that the subcontractor or

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independent contractor was enrolled in the E-verify Program

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by requiring the subcontractor or independent contractor to

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show documentary evidence of such enrollment provided by the

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Federal Government.

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(8)  A suspension under this section shall terminate one

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business day after a legal representative of the business

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entity submits, at an office designated by the secretary, all

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of the following:

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(i)  Documentation acceptable to the secretary which

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confirms that the business entity has enrolled in and is

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participating in the E-verify Program.

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(ii)  A sworn affidavit stating that the violation

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has ended. The affidavit shall include a description of

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the specific measures and actions taken by the business

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entity to end the violation and shall, if applicable,

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include the name, address and other adequate identifying

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information for any unauthorized aliens related to the

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complaint.

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(9)  For a second or subsequent violation, the secretary

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shall order all government entities to suspend the

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registration of any business entity for a minimum period of

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20 days. After the end of the suspension period, and upon

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receipt of the prescribed affidavit and documentation, the

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secretary shall order all government entities to reinstate

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the registration of any business entity. The secretary shall

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forward the affidavit, complaint and associated documents to

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the Bureau of Immigration and Customs Enforcement of the

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Department of Homeland Security.

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(10)  This section shall be subject to 2 Pa.C.S. Chs. 5

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Subch. A (relating to practice and procedure of Commonwealth

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agencies) and 7 Subch. A (relating to judicial review of

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Commonwealth agency action).

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(k)  State funding.--A government entity that fails to comply

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with this section and the directives from the secretary

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regarding the failure of any business entity to enroll in the E-

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verify Program shall be ineligible for State funding.

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(l)  Procedure.--This act shall not be construed to deny any

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procedural mechanisms included in the E-verify Program.

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(m)  Federal determination.--

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(1)  The determination of whether an employee is an

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unauthorized alien shall be made by the Federal Government

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under the Illegal Immigration Reform and Immigrant

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Responsibility Act of 1996. A determination of the status of

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an employee by the Federal Government shall create a

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rebuttable presumption as to that employee's status in any

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judicial proceedings brought pursuant to this act.

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(2)  The court may take judicial notice of any

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verification of the employee previously provided by the

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Federal Government and may request the Federal Government to

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provide automated or testimonial verification under the

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Illegal Immigration Reform and Immigrant Responsibility Act

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of 1996.

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Section 4.  Ordinance.

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A political subdivision of this Commonwealth may enact any

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ordinance:

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(1)  Prohibiting the employment of unauthorized aliens or

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other unlawful workers, may deny registration to employers

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who employ unauthorized aliens and may allow lawful employees

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to bring suit against such employers to recover treble

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damages and reasonable attorney fees.

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(2)  Restricting the rental of housing to an alien

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unlawfully present in the United States.

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Section 5.  Construction.

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This act shall be construed so as to be fully consistent with

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Federal immigration and labor laws.

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Section 6.  Severability.

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The provisions of this act are severable. If any provision of

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this act or its application to any person or circumstance is

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held invalid, the invalidity shall not affect other provisions

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or applications of this act which can be given effect without

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the invalid provision or application.

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Section 7.  Effective date.

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This act shall take effect in 60 days.

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