PRINTER'S NO. 421
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
476
Session of
2015
INTRODUCED BY RAFFERTY, BROWNE AND SCARNATI, FEBRUARY 13, 2015
REFERRED TO LABOR AND INDUSTRY, FEBRUARY 13, 2015
AN ACT
Prohibiting employment of illegal aliens; requiring
participation in the Basic Pilot Program as a condition for
Commonwealth contracts or grants; prohibiting business tax
deductions for certain compensation; requiring suspension of
licenses, registrations and certificates of incorporation
under certain circumstances; and authorizing a private cause
of action.
The General Assembly finds that:
(1) Employers in this Commonwealth who employ
unauthorized aliens have systematically distorted the labor
market of this Commonwealth by reducing wages, adversely
affecting working conditions, evading taxes and reducing the
number of jobs available to those who are lawfully entitled
to employment in this Commonwealth.
(2) The United States has established and maintains a
national program for the electronic verification of work
authorization, the Basic Pilot Program, which enables
employers to promptly and accurately verify the employment
eligibility of all job applicants.
(3) It is in the best interests of and will serve and
benefit the health, safety and welfare of the public and law-
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abiding business entities to adopt policies and procedures to
deter and prevent the employment of unauthorized aliens.
(4) The Federal Government expressly permits state
governments to sanction the employers of unauthorized aliens
through licensing and other similar restrictions.
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 Fair
Employment 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:
"Basic Pilot Program." The electronic verification of the
work authorization program of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (Public Law 104-208, 110
Stat. 3009-546), which is operated by the Department of Homeland
Security.
"Business entity." An individual, corporation, partnership,
limited liability company or other legal entity, whether for
profit or not for profit, who has applied for, holds or benefits
from any registration.
"Contractor." A person, employer or business entity that
enters into an agreement to perform any service or work or to
provide a certain product in exchange for valuable
consideration.
"Employee." A person performing or applying for work or
service of any kind or character for hire.
"Employer." A business entity that employs or seeks to
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employ a person for hire. If there are two or more putative
employers, the business entity taking a business tax deduction
for the employee in question shall be considered the employer of
that person for the purposes of this act.
"Employment." The act of employing or of being employed,
engaged or hired.
"Government entity." The Commonwealth or any of its
political subdivisions. The term includes any agency, authority,
board or commission of the Commonwealth or any of its political
subdivisions.
"Registration." Any license, permit, registration or
certificate granted or provided by a government entity.
"Unauthorized alien." An alien who does not have the legal
right or authorization under Federal law to work in the United
States.
"Work." A job, task, employment, labor, personal service or
any other activity for which compensation is provided, expected
or due, including activities conducted by business entities.
Section 3. Prohibitions.
(a) Employment.--It is unlawful for any employer to employ,
or employer or business entity to permit the employment of, an
unauthorized alien.
(b) Affirmation for initial registration.--As a condition
for initial registration, a business entity shall provide to the
government entity:
(1) an affidavit that the business entity is not an
employer; or
(2) an affidavit affirming that the business entity does
not knowingly employ any person who is an unauthorized alien
as well as an affidavit and supporting documentation that the
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business entity has enrolled and is an active participant in
the Basic Pilot Program.
(c) Affirmation for continued registration.--As a condition
of the periodic renewal of a registration, a business entity
shall comply with subsection (b) as if applying for initial
registration.
(d) Change of status.--A business entity that complied with
subsection (b)(1) as a condition of any initial registration
under subsection (b) or continued registration under subsection
(c), and during that registration becomes an employer, shall
comply with subsection (b)(2).
(e) Awards.--As a condition for the award of any
Commonwealth contract or grant to an employer for which the
value of employment, labor or personal service shall exceed
$10,000, the employer shall provide documentation affirming its
enrollment and participation in the Basic Pilot Program.
(f) Government entities.--All government entities shall
enroll and actively participate in the Basic Pilot Program.
(g) Verification.--An employer participating in the Basic
Pilot Program shall verify the employment eligibility of every
employee in the employer's hire whose employment commences after
the employer enrolls in the Basic Pilot Program.
(h) Tax deduction.--Compensation, whether in money or in
kind or in services, provided to any unauthorized alien shall
not be allowed as a business expense deduction from any income
or business tax of the Commonwealth.
(i) Violations.--Any business entity operating within this
Commonwealth in violation of this act shall have all
registrations suspended under subsection (j).
(j) Enforcement.--The Secretary of State shall enforce the
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requirements of this section. The following apply:
(1) An enforcement action shall be initiated by means of
a written, signed complaint to the secretary's office
submitted by any government entity, business entity or
resident. A valid complaint shall include an allegation that
describes the alleged violator as well as the actions
constituting the violation and the date and location where
the actions occurred.
(2) A complaint that alleges a violation on the basis of
national origin, ethnicity or race shall be deemed invalid
and shall not be enforced.
(3) Upon receipt of a valid complaint, the secretary
shall, within three business days, request information from
the business entity that is the subject of the complaint,
which may include any of the following:
(i) Copies of any information provided to a
government entity under subsection (b), (c) or (d).
(ii) Identity information concerning any employees
alleged to be unauthorized aliens.
(iii) Verification of the work authorization of
aliens provided to the employer through the Basic Pilot
Program.
(4) The secretary shall submit identity data required by
the Federal Government to verify, pursuant to the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(Public Law 104-208, 110 Stat. 3009-546), the immigration
status and work authorization of employees alleged to be
unauthorized aliens and shall provide the employer with
written confirmation of that verification.
(5) The secretary shall order all government entities to
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suspend the registration of any business entity that the
secretary finds in violation of this act or that fails to
correct a violation of this act.
(6) The correction of a violation with respect to the
employment of an unauthorized alien shall include any of the
following actions:
(i) The employer terminates the unauthorized alien's
employment.
(ii) The employer, after acquiring additional
information from the employee, requests a secondary or
additional verification by the Federal Government of the
employee's authorization under the procedures of the
Basic Pilot Program. While this verification is pending,
any enforcement action shall be tolled.
(iii) The employer attempts to terminate the
unlawful worker's employment and the termination is
challenged in a court of this Commonwealth. While the
employer pursues the termination of the unauthorized
alien's employment in such forum, any enforcement action
shall be tolled.
(7) A general contractor shall not be in violation of
this act with respect to any alleged unauthorized alien
employed by a subcontractor or independent contractor hired
by the general contractor if, prior to the alleged violation,
the general contractor verified that the subcontractor or
independent contractor was enrolled in the Basic Pilot
Program by requiring the subcontractor or independent
contractor to show documentary evidence of such enrollment
provided by the Federal Government.
(8) A first suspension under this section shall
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terminate one business day after a legal representative of
the business entity submits, at an office designated by the
secretary, all of the following:
(i) Documentation acceptable to the secretary which
confirms that the business entity has enrolled in and is
participating in the Basic Pilot Program.
(ii) A sworn affidavit stating that the violation
has ended. The affidavit shall include a description of
the specific measures and actions taken by the business
entity to end the violation and shall, if applicable,
include the name, address and other adequate identifying
information for any unauthorized aliens related to the
complaint.
(9) For a second or subsequent violation, the secretary
shall order all government entities to suspend the
registration of any business entity for a minimum period of
90 days. After the end of the suspension period, and upon
receipt of the prescribed affidavit and documentation, the
secretary shall order all government entities to reinstate
the registration of any business entity. The secretary shall
forward the affidavit, complaint and associated documents to
the Bureau of Immigration and Customs Enforcement of the
Department of Homeland Security.
(10) This section shall be subject to 2 Pa.C.S. Chs. 5
Subch. A (relating to practice and procedure of Commonwealth
agencies) and 7 Subch. A (relating to judicial review of
Commonwealth agency action).
(k) State funding.--Any government entity that fails to
comply with this section and the directives from the secretary
regarding the failure of any business entity to enroll in the
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Basic Pilot Program shall be ineligible for State funding.
(l) Procedure.--This act shall not be construed to deny any
procedural mechanisms included in the Basic Pilot Program.
(m) Federal determination.--
(1) A determination of whether an employee is an
unauthorized alien made by the Federal Government under the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 shall create a rebuttable presumption as to that
employee's status in any judicial proceedings brought
pursuant to this act.
(2) The court may take judicial notice of any
verification of the employee previously provided by the
Federal Government and may request the Federal Government to
provide automated or testimonial verification under the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996.
Section 4. Ordinances.
A political subdivision of this Commonwealth may:
(1) Enact an ordinance prohibiting the employment of
unauthorized aliens or other unlawful workers.
(2) Deny a registration to an employer who employs
unauthorized aliens.
(3) Enact an ordinance restricting the rental of housing
to an alien unlawfully present in the United States.
Section 5. Construction.
This act shall be construed so as to be fully consistent with
Federal immigration and labor laws.
Section 6. Severability.
The provisions of this act are severable. If any provision of
this act or its application to any person or circumstance is
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held invalid, the invalidity shall not affect other provisions
or applications of this act which can be given effect without
the invalid provision or application.
Section 7. Effective date.
This act shall take effect in 60 days.
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