Regular Session 2021-2022 Senate Bill 0817 P.N. 1003

PRINTER'S NO. 1003

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

817

Session of

2021

INTRODUCED BY KANE, TARTAGLIONE, L. WILLIAMS, SAVAL, FONTANA,

CAPPELLETTI, COSTA, HUGHES, MUTH, COMITTA, COLLETT,

SANTARSIERO, FLYNN, HAYWOOD AND KEARNEY, JULY 26, 2021

REFERRED TO LABOR AND INDUSTRY, JULY 26, 2021

AN ACT

Amending the act of October 13, 2010 (P.L.506, No.72), entitled

"An act providing for the criteria for independent

contractors in the construction industry and for the powers

and duties of the Department of Labor and Industry and the

Secretary of Labor and Industry; and imposing penalties,"

further providing for definitions, for improper

classification of employees, for criminal penalties, for

administrative penalties and for availability of information.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 2 of the act of October 13, 2010

(P.L.506, No.72), known as the Construction Workplace

Misclassification Act, is amended by adding a definition to

read:

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:

* * *

"Debar." Action taken by the secretary to prohibit a

contractor, subcontractor or individual from contracting with or

participating in contracts for State-supervised or State-funded

construction for a specified period or permanently. The

debarment will include all divisions or other organizational

elements of a contractor or subcontractor unless limited by its

terms to specific divisions or organizational elements. The

debarment may apply to affiliates or other individuals or

entities associated with the contractor, subcontractor or

individual if they are specifically named and given written

notice of the debarment and an opportunity to appeal.

* * *

Section 2. Section 4(d) and (e) of the act are amended to

read:

Section 4. Improper classification of employees.

* * *

(d) Enforcement.--If, subsequent to issuing an order to show

cause under subsection (c), the secretary finds [probable cause

that an employer has committed a criminal violation of this act,

the secretary shall refer the matter to the Office of Attorney

General for investigation or] that an employer has violated the

Workers' Compensation Act, the secretary shall impose

administrative penalties under section 6. In addition, the

secretary may refer the matter to the Attorney General for

criminal investigation. The secretary shall make a referral if

the employer has previously been found in violation of this act

in another matter. The Attorney General has jurisdiction under

section 5 to initiate an investigation or prosecution of

criminal violations of this act regardless of whether a referral

has been made.

(e) Acting in concert with other parties.--A party that does

20210SB0817PN1003 - 2 -

not meet the definition of "employer" in section 2, but which

[intentionally] contracts with an employer [knowing the employer

intends to misclassify] to supply labor for construction knowing

the employer will misclassify the supplied employees in

violation of this act, shall be subject to the same penalties,

remedies or other actions as the employer found to be in

violation of this act.

* * *

Section 3. Section 5(a) of the act is amended and the

section is amended by adding a subsection to read:

Section 5. Criminal penalties.

(a) Grading.--[An employer, or officer or agent of an

employer, that intentionally violates section 4(a) commits:

(1) A misdemeanor of the third degree for a first

offense.

(2) A misdemeanor of the second degree for a second or

subsequent offense.] The following shall apply:

(1) An employer, or officer or agent of an employer who

knowingly violates section 4(a) commits:

(i) A misdemeanor of the first degree if the

employer has no prior offense under section 4(a).

(ii) A felony of the third degree if the employer

has one or more prior offenses under section 4(a).

(2) An employer, or officer or agent of an employer, who

knowingly violates section 4(a)(1), and who knows that the

misclassified employee does not have the legal right or

authorization under Federal law to work in the United States,

commits:

(i) A felony of the third degree if the employer has

no prior offense under section 4(a)(1).

20210SB0817PN1003 - 3 -

(ii) A felony of the second degree if the employer

has one or more prior offenses under section 4(a)(1).

* * *

(d) Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection unless the context clearly indicates otherwise:

"Prior offense." A conviction of a violation of section 4,

if the judgment of sentence was imposed before the defendant is

sentenced for a separate violation of section 4.

Section 4. Section 6 of the act is amended by adding a

subsection to read:

Section 6. Administrative penalties.

* * *

a violation of this act was intentional, the secretary shall

debar, for a set period or permanently, a contractor,

subcontractor or individual from bidding on or participating in

State-supervised construction.

Section 5. Section 11 of the act is amended to read:

Section 11. Availability of information.

The department shall create a poster [for job sites] which

outlines the requirements and penalties under this act and shall

make the poster available on its Internet website. Every

employer subject to this act shall keep a summary of this act

and any regulations issued thereunder applicable to him or her,

posted in a conspicuous place where employees normally pass and

can read it, both on job sites and any and all places of

business. At the discretion of the secretary, a toll-free

hotline telephone number may be established to receive alleged

violations.

20210SB0817PN1003 - 4 -

Section 6. This act shall take effect in 60 days.

20210SB0817PN1003 - 5 -