Regular Session 2017-2018 House Bill 0856 P.N. 0938

PRINTER'S NO. 938

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

856

Session of

2017

INTRODUCED BY METCALFE, D. COSTA, CUTLER, CAUSER, EMRICK,

MILLARD, PHILLIPS-HILL, WATSON, KAUFFMAN, DUNBAR, COX,

B. MILLER, GREINER, WARNER, SAYLOR, A. HARRIS, MARSHALL,

STAATS, GOODMAN, BURNS, EVERETT, READSHAW AND ROAE,

MARCH 13, 2017

REFERRED TO COMMITTEE ON STATE GOVERNMENT, MARCH 13, 2017

AN ACT

Providing for the prohibition of employing unauthorized aliens.

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 Legal

Pennsylvania Workers 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 a

county, city, town or the Commonwealth that issues a license for

purposes of operating a business in this Commonwealth.

"Attorney General." The Attorney General of the

Commonwealth.

"Basic pilot program." The Basic Pilot Employment

Verification Program as jointly administered by the United

States Department of Homeland Security and the Social Security

Administration or its successor program, as authorized under

Title IV, Subtitle A, of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996.

"District attorney." The district attorney of the county in

which the employee is employed.

"Employee." A person who performs employment services for an

employer pursuant to an employment relationship.

"Employer." An individual or organization that transacts

business in this Commonwealth, that has a license issued by an

agency in this Commonwealth and that employs at least one

individual. Employer includes the Commonwealth, any political

subdivision of this Commonwealth and any self-employed person.

"Illegal Immigration Reform and Immigrant Responsibility Act

of 1996." Division C of the act of September 30, 1996, (Public

Law 104-208. 110 Stat. 3009-546).

"Knowingly employ an unauthorized alien." As described in

section 274A of the Immigration Reform and Control Act of 1986

(Public Law 99-603, 8 U.S.C. § 1324A).

"License." An agency permit, certificate, approval,

registration, charter or similar form of authorization that is

required by law and that is issued by an agency for the purposes

of operating a business in this Commonwealth, and the following

shall apply:

(1) A license shall include:

(i) Articles of incorporation, a certificate of

limited partnership, certificate of organization or

articles of association under 15 Pa.C.S. (relating to

corporations and unincorporated associations).

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(ii) A sales tax license, as required by the act of

March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code

of 1971.

(2) A license does not include any state-issued

professional license.

"Secretary." The Secretary of the Department of Labor and

Industry.

"Unauthorized alien." As defined in section 274A of the

Immigration Reform and Control Act of 1986 (Public Law 99-603, 8

U.S.C. § 1324A(h)(3)).

Section 3. Employment of unauthorized aliens.

An employer may not knowingly employ an unauthorized alien in

this Commonwealth.

Section 4. Investigations.

(a) General rule.--On the receipt of a complaint that an

employer knowingly employs an unauthorized alien, the Attorney

General or a district attorney shall investigate whether the

employer has violated section 3 and the following shall apply:

(1) When investigating a complaint the Attorney General

or district attorney shall verify the work authorization of

the alleged unauthorized alien with the Federal Government

under section 642 of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (8 U.S.C. § 1373(c))

(2) A State, county or local official may not attempt to

independently make a final determination of whether an alien

is authorized to work in the United States.

(b) False complaint.--A person who knowingly files a false

complaint under this section is guilty of a class three

misdemeanor.

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after an investigation, the Attorney General or district

attorney determines that the complaint is not false, the

Attorney General or district attorney shall notify:

(1) The United States Immigration and Customs

Enforcement of the unauthorized alien.

(2) The local law enforcement agency of the unauthorized

alien.

(3) The district attorney to bring an action under

section 5 if the complaint was originally filed with the

Attorney General.

Section 5. Civil action.

(a) General rule.--An action for a violation of section 3

shall be brought against the employer by the district attorney.

(b) Exception.--The district attorney may not bring an

action against any employer for any violation of section 3 that

occurs before January 1, 2018.

violation shall be based on the employment of any unauthorized

alien by an employer after an action has been brought against

the employer for a violation of section 3, regardless of whether

the employer knowingly employed the unauthorized alien.

Section 6. Penalties.

(a) First violation.--The following shall apply for the

first violation during a three-year period:

(1) The court shall order:

(i) the employer to terminate the employment of all

unauthorized aliens;

(ii) the employer to enter into a three-year

probationary period, during which the employer shall file

quarterly reports with the district attorney of each new

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employee who is hired by the employer at the specific

location where the unauthorized alien performed work;

(iii) the employer to file a signed affidavit with

the district attorney, within three business days after

the order is issued, that states the employer has

terminated the employment of all unauthorized aliens; and

(iv) the appropriate agencies to suspend all

licenses subject to this act that are held by the

employer if the employer fails to file a signed affidavit

with the district attorney within three business days

after the order is issued.

(2) The court may order the appropriate agency to

suspend a license held by the employer for not more than 10

business days. The court shall consider the following factors

in deciding to suspend a license, if relevant:

(i) The number of unauthorized aliens employed by

the employer.

(ii) Any prior misconduct by the employer.

(iii) The degree of harm resulting from the

violation.

(iv) Whether the employer made good faith efforts to

comply with any applicable requirements.

(v) The duration of the violation.

(vi) The role of the directors, officers or

principals of the employer in the violation.

(vii) Any other factors the court deems appropriate.

(3) The court shall send a copy of the court's order to

the Attorney General, who shall maintain the copy under

section 7.

(4) All licenses that are suspended under this

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subsection shall remain suspended until the employer files

the signed affidavit under paragraph (1)(iii) with the

district attorney. Notwithstanding any other law, a suspended

license shall be reinstated immediately by the appropriate

agency upon the filing of the affidavit by the employer.

(b) Second or subsequent violation.--For a second or

subsequent violation of section 3 during the period of

probation, the following shall apply:

(1) The court shall order the appropriate agencies to

permanently revoke all licenses that are held by the employer

and that are necessary to operate the employer's business at

the employer's business location where the unauthorized alien

performed work.

(2) If a license is not necessary to operate the

employer's business at the specific location where the

unauthorized alien performed work, but a license is necessary

to operate the employer's business in general, the court

shall order the appropriate agencies to permanently revoke

all licenses that are held by the employer at the employer's

primary place of business.

Section 7. Records of the Attorney General.

The Attorney General shall maintain copies of court orders

that are received under section 6(a)(3) and shall maintain a

database of the employers who have a first violation of section

3. The Attorney General shall make the court orders available on

the Attorney General's website.

Section 8. Verifying the immigration status of an employee.

(a) General rule.--A court shall verify the immigration

status of an employee through a query to the appropriate entity

of the Federal Government under section 642 of the Illegal

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Immigration Reform and Immigrant Responsibility Act of 1996 (8

U.S.C. § 1373(c)).

(b) Rebuttable presumption of immigration status.--A

determination of an employee's immigration status under

subsection (a) creates a rebuttable presumption of the

employee's lawful 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 of the employee's immigration status.

an employee's authorization for employment through the basic

pilot program creates a rebuttable presumption that an employer

did not violate section 3.

Section 9. Employer actions.

This article may not be construed to require an employer to

take any action that the employer believes in good faith would

violate Federal or State law.

Section 10. Verification of employment eligibility through the

basic pilot program.

After December 31, 2017, an employer shall verify the

employment eligibility of an employee through the basic pilot

program.

Section 11. Employer notice.

On or before October 1, 2017, the Department of Revenue shall

provide a notice to each employer that is required to withhold

tax under the act of March 4, 1971 (P.L.6, No.2), known as the

Tax Reform Code of 1971, which shall include the following:

(1) An explanation of the provisions of this act.

(2) Instructions for how an employer enrolls in the

basic pilot program.

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Section 12. Promulgation of a Statewide random auditing

program.

The secretary shall develop a Statewide random auditing

program to inspect private employers for compliance with the

provisions of this act and shall promulgate regulations for the

program under the act of June 25, 1982 (P.L.633, No.181), known

as the Regulatory Review Act.

Section 13. Right of entry and inspection by inspectors.

The secretary or inspectors, agents, designees of the

secretary or any elected official of this Commonwealth, upon

proper presentation of credentials to the owner, manager or

agent of the employer, may:

(1) enter at reasonable times and question either

publicly or privately any employer, owner, manager or agent

and the employees of the private employer; and

(2) inspect, investigate, reproduce or photograph

business records relevant to determining compliance with this

act.

Section 14. Effective date.

This act shall take effect in 60 days.

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