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A01912
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1170
Session of
2019
INTRODUCED BY MACKENZIE, GALLOWAY, BARRAR, T. DAVIS, KEEFER,
MILLARD, NEILSON, READSHAW, MENTZER, EMRICK AND KORTZ,
APRIL 9, 2019
AS REPORTED FROM COMMITTEE ON LABOR AND INDUSTRY, HOUSE OF
REPRESENTATIVES, AS AMENDED, JUNE 4, 2019
AN ACT
Prohibiting the employment of unauthorized employees; requiring
construction industry employers to verify the Social Security
numbers of employees; and imposing penalties.
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 Construction
Industry Employee Verification 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 the
Commonwealth or of a municipality that issues a license for
purposes of operating a business in this Commonwealth.
"Construction industry." The industry which engages in the
erection, reconstruction, demolition, alteration, modification,
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custom fabrication, building, assembling, site preparation and
repair work or maintenance work done on real property or
premises under a contract, including work for a public body or
work paid for from public funds.
"Construction industry employer." An individual, entity or
organization that transacts business in this Commonwealth in the
construction industry, has a license issued by an agency and
employs at least one employee in this Commonwealth. THE TERM
INCLUDES A STAFFING AGENCY THAT SUPPLIES WORKERS TO A
CONSTRUCTION INDUSTRY EMPLOYER.
"DEPARTMENT." THE DEPARTMENT OF LABOR AND INDUSTRY OF THE
COMMONWEALTH.
"EMPLOY." TO ENTER INTO AN EMPLOYER-EMPLOYEE RELATIONSHIP
WITH AN INDIVIDUAL OR TO USE A CONTRACT, SUBCONTRACT OR EXCHANGE
WITH AN INDIVIDUAL TO OBTAIN LABOR.
"Employee." An individual for whom a construction industry
employer is required by law to file a Form W-2 with the Internal
Revenue Service. AN INDIVIDUAL WHO HAS ENTERED INTO AN EMPLOYER-
EMPLOYEE RELATIONSHIP WITH A CONSTRUCTION INDUSTRY EMPLOYER OR
ENTERS INTO A CONTRACT, SUBCONTRACT OR EXCHANGE WITH A
CONSTRUCTION INDUSTRY EMPLOYER TO PROVIDE LABOR.
"Employer." A construction industry employer.
"E-Verify program." The Internet-based program administered
by the United States Department of Homeland Security and the
United States Social Security Administration which allows
employers to verify an employee's work-authorization status. The
term includes any successor program.
"License." A permit, certificate, approval, registration,
charter or similar form of authorization that is required by law
and issued by an agency for the purposes of operating a business
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in this Commonwealth. The term includes articles of
incorporation and partnership registrations. The term does not
include a professional or occupational license or certificate
granted to an individual to engage in a profession or trade.
"SUBCONTRACTOR." A PERSON REGARDLESS OF TIER, INCLUDING, BUT
NOT LIMITED TO, A STAFFING AGENCY THAT SUPPLIES WORKERS TO A
CONSTRUCTION INDUSTRY EMPLOYER UNDER A CONTRACT. THE TERM SHALL
NOT INCLUDE PERSONS THAT ARE MATERIAL SUPPLIERS FOR A PROJECT.
"Unauthorized employee." An individual who does not have the
legal right or authorization under Federal law to work in the
United States.
Section 3. Prohibited employment.
(a) Prohibition.--An employer may not knowingly employ an
unauthorized employee.
(b) Verification.--On and after the effective date of this
section, each employer who hires an employee shall verify the
employment eligibility of the employee through the E-Verify
program and shall keep a record of the verification for the
duration of the employee's employment or three years, whichever
is longer.
(C) STAFFING AGENCIES.--IF A STAFFING AGENCY SUPPLIES
WORKERS TO MULTIPLE INDUSTRIES, SUBSECTIONS (A) AND (B) SHALL
ONLY APPLY TO WORKERS SUPPLIED FOR THE CONSTRUCTION INDUSTRY.
Section 4. Reports.
(a) Report to department.--On an annual basis, an employer
shall report to the department the following information:
(1) The number of individuals who did not receive an
initial verification through the E-Verify program under
section 3(b) and the number of individuals who did not
receive final verification under section 5(f).
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(2) The number of individuals who contest the initial
and final nonverifications under paragraph (1).
(3) The number of known initial and final
nonverifications that were issued in error under sections
3(b) and 5(f).
(b) Report to General Assembly.--The department shall
annually submit a report containing the information under
subsection (a) to the General Assembly.
Section 4 5. Procedures, presumptions and defenses.
(A) COMPLAINTS.--A COMPLAINT ABOUT A VIOLATION OF SECTION
3(A) MAY BE SUBMITTED TO THE DEPARTMENT.
(a) (B) Form.--The Attorney General DEPARTMENT shall
prescribe a complaint form for an individual to allege a
violation of section 3(a). An individual who knowingly provides
materially false information in a complaint form under this
subsection shall be subject to punishment under 18 Pa.C.S. §
4904 (relating to unsworn falsification to authorities).
(b) (C) Duty to investigate.--Upon receipt of a complaint on
a prescribed complaint form alleging that an employer knowingly
employs an unauthorized employee, the Attorney General
DEPARTMENT shall investigate whether the employer has violated
section 3(a).
(c) (D) Authority to investigate.--The Attorney General
DEPARTMENT may investigate a complaint that is not submitted on
a prescribed complaint form, including an anonymous complaint.
(d) (E) Prohibition.--The Attorney General DEPARTMENT may
not investigate a complaint that is based solely on race, color
or national origin.
(e) (F) Verification.--If investigating a complaint, the
Attorney General DEPARTMENT shall verify the work authorization
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of the alleged unauthorized employee with the Federal Government
under section 642(c) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (Public Law 104-208, 8
U.S.C. § 1373(c)). A Commonwealth or local official may not
attempt to independently make a final determination on whether
an unauthorized employee is authorized to work in the United
States.
(f) (G) Notification and action.--If, after an
investigation, the Attorney General DEPARTMENT determines that
the alleged employee is an unauthorized employee, the Attorney
General DEPARTMENT shall do all of the following:
(1) Notify United States Immigration and Customs
Enforcement of the unauthorized employee.
(2) Bring (1) FOR A FIRST VIOLATION, THE DEPARTMENT
SHALL ISSUE A WARNING LETTER DETAILING THE VIOLATION AND
INFORMING THE CONSTRUCTION INDUSTRY EMPLOYER OF THE
PROVISIONS OF THIS ACT. NOTWITHSTANDING PARAGRAPH (2), A
VIOLATION BY A CONSTRUCTION INDUSTRY EMPLOYER THAT OCCURS 10
YEARS OR MORE AFTER A PRIOR VIOLATION SHALL BE DEEMED A FIRST
VIOLATION. THE FOLLOWING SHALL APPLY:
(I) THE DEPARTMENT MAY NOT ISSUE A WARNING LETTER IF
THE EMPLOYER DEMONSTRATES THAT THE EMPLOYMENT ELIGIBILITY
OF THE UNAUTHORIZED EMPLOYEE WAS VERIFIED IN GOOD FAITH
THROUGH THE E-VERIFY PROGRAM IN ACCORDANCE WITH SECTION
3(B).
(II) AFTER THE ISSUANCE OF A WARNING LETTER, THE
EMPLOYER SHALL VERIFY IN WRITING TO THE DEPARTMENT WITHIN
10 BUSINESS DAYS THAT THE EMPLOYER HAS TERMINATED THE
EMPLOYMENT OF EACH UNAUTHORIZED EMPLOYEE IN THIS
COMMONWEALTH. IF THE EMPLOYER FAILS TO PROVIDE SUCH
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VERIFICATION, THE VIOLATION SHALL CONSTITUTE A SECOND
VIOLATION, AND THE DEPARTMENT SHALL MAKE A REFERRAL TO
THE ATTORNEY GENERAL UNDER PARAGRAPH (2).
(III) THE EMPLOYER MAY APPEAL THE ISSUANCE OF THE
WARNING LETTER UNDER THE PROVISIONS OF 2 PA.C.S.
(RELATING TO ADMINISTRATIVE LAW AND PROCEDURE).
(2) FOR A SECOND OR SUBSEQUENT VIOLATION, THE DEPARTMENT
SHALL REFER THE CASE TO THE ATTORNEY GENERAL FOR ENFORCEMENT.
THE ATTORNEY GENERAL SHALL BRING an action against the
employer in the county where the unauthorized employee is or
was employed by the employer. The Attorney General shall not
bring an action against an employer for a violation that
occurred before the effective date of this section.
(g) (H) Expedited action.--Upon docketing, the court shall
expedite the action, including assigning the hearing at the
earliest practicable date.
(h) (I) Determination.--In determining whether an employee
is an unauthorized employee, the court shall consider only the
Federal Government's determination under section 642(c) of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996. The Federal Government's determination shall create a
rebuttable presumption of the employee's 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 under section 642(c) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996.
(i) (J) Rebuttable presumption.--Proof that the employer
verified the employment authorization of an employee through the
E-Verify program shall create a rebuttable presumption that an
employer did not knowingly employ an unauthorized employee.
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(j) (K) Affirmative defense.--For the purposes of this
section, it shall be an affirmative defense if the employer
demonstrates that it has complied in good faith with section
274A(b) of the Immigration and Nationality Act (66 Stat. 163, 8
U.S.C. § 1324a(b)). An employer shall be considered to have
complied with section 274A(b) of the Immigration and Nationality
Act, notwithstanding an isolated, sporadic or accidental
technical or procedural failure to meet the requirements, if the
employer establishes a good faith attempt to comply with section
274A(b) of the Immigration and Nationality Act.
Section 5 6. Penalties and remedial orders.
(a) Order.--Upon a finding of a violation under section 3(a)
PURSUANT TO AN ACTION BROUGHT BY THE ATTORNEY GENERAL UNDER THIS
ACT, the court shall order all of the following:
(1) The employer to terminate the employment of each
unauthorized employee.
(2) The employer to a three-year probationary period for
each business location where the unauthorized employee
performed work. During the probationary period the employer:
(i) shall file quarterly reports with the Attorney
General DEPARTMENT of each new employee who is hired by
the employer at the business location where the
unauthorized employee performed work; and
(ii) may not knowingly employ an unauthorized
employee.
(3) The employer, within three FIVE business days, to
verify in writing to the Attorney General DEPARTMENT that the
employer has terminated the employment of each unauthorized
employee in this Commonwealth.
(4) Agencies to suspend each license that is held by the
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employer if the employer fails to timely submit the
verification. Each license that is suspended under this
paragraph shall remain suspended until the employer complies.
Notwithstanding any other law, on filing of the verification,
each license shall be reinstated immediately by the
appropriate agency. For the purposes of this paragraph, a
license that is subject to suspension under this paragraph
shall include each license that is held by the employer
specific to the business location where the unauthorized
employee performed work. If the employer does not hold a
license specific to the business location where the
unauthorized employee performed work, the court shall order
suspension of each license that is held by the employer
pertaining to operations anywhere within this Commonwealth.
(b) Duration.--The following shall apply:
(1) For a first SECOND violation of section 3(a), the
court may order the agency to suspend each license described
under subsection (a)(4) that is held by the employer for a
period not to exceed 10 30 business days.
(2) For a SUBSEQUENT VIOLATION OF SECTION 3(A) OR A
violation occurring during a three-year probationary period
under subsection (a)(2), the court may SHALL order suspension
for a term not to exceed LESS THAN one year UP TO THE
PERMANENT REVOCATION OF EACH LICENSE.
(c) Factors.--In determining whether to order suspension or
the duration of a suspension, the court shall consider the
following factors:
(1) The number of unauthorized employees employed by the
employer.
(2) Any prior misconduct by the employer.
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(3) The degree of harm resulting from the violation.
(4) Whether the employer made good faith efforts to
comply with any applicable requirements.
(5) The duration of the violation.
(6) The role of the directors, officers or principals of
the employer in the violation.
(7) Any other factors the court deems appropriate.
(D) SUSPENSION AND REINSTATEMENT FEES.--NOTHING IN THIS ACT
SHALL PROHIBIT AN AGENCY FROM CHARGING ANY APPLICABLE FEE FOR
THE SUSPENSION OR REINSTATEMENT OF A LICENSE.
SECTION 6 7. PROTECTION FROM RETALIATION.
(A) GENERAL RULE.--IT SHALL BE UNLAWFUL FOR A CONSTRUCTION
INDUSTRY EMPLOYER TO DISCHARGE, THREATEN OR OTHERWISE RETALIATE
OR DISCRIMINATE AGAINST AN EMPLOYEE REGARDING COMPENSATION OR
OTHER TERMS OR CONDITIONS OF EMPLOYMENT BECAUSE THE EMPLOYEE:
(1) PARTICIPATES IN AN INVESTIGATION, HEARING OR INQUIRY
HELD BY THE SECRETARY OF LABOR AND INDUSTRY OR ANY OTHER
GOVERNMENTAL AUTHORITY UNDER THIS ACT; OR
(2) REPORTS OR MAKES A COMPLAINT REGARDING THE VIOLATION
OF THIS ACT TO A CONSTRUCTION INDUSTRY EMPLOYER OR
GOVERNMENTAL AUTHORITY.
(B) ACTIONS.--
(1) AN EMPLOYEE WHO SUFFERS RETALIATION OR
DISCRIMINATION IN VIOLATION OF THIS SECTION MAY BRING AN
ACTION IN A COURT OF COMMON PLEAS IN ACCORDANCE WITH
ESTABLISHED CIVIL PROCEDURES OF THIS COMMONWEALTH.
(2) THE ACTION MUST BE BROUGHT WITHIN THREE YEARS FROM
THE DATE THE EMPLOYEE KNEW OF THE RETALIATION OR
DISCRIMINATION.
(C) RELIEF.--IF AN EMPLOYEE PREVAILS IN AN ACTION COMMENCED
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UNDER THIS SECTION, THE EMPLOYEE SHALL BE ENTITLED TO THE
FOLLOWING RELIEF:
(1) REINSTATEMENT OF THE EMPLOYEE, IF APPLICABLE.
(2) RESTITUTION EQUAL TO THREE TIMES THE AMOUNT OF THE
EMPLOYEE'S WAGES AND FRINGE BENEFITS CALCULATED FROM THE DATE
OF THE RETALIATION OR DISCRIMINATION.
(3) REASONABLE ATTORNEY FEES AND COSTS OF THE ACTION.
(4) ANY OTHER LEGAL AND EQUITABLE RELIEF AS THE COURT
DEEMS APPROPRIATE.
SECTION 7 8. IMMUNITY AND COMPLIANCE.
(A) IMMUNITY.--A CONSTRUCTION INDUSTRY EMPLOYER THAT RELIES
IN GOOD FAITH ON THE E-VERIFY PROGRAM TO VERIFY EMPLOYMENT
ELIGIBILITY OF NEW EMPLOYEES UNDER THIS ACT SHALL HAVE NO
LIABILITY TO AN INDIVIDUAL WHO IS NOT HIRED OR WHO IS DISCHARGED
FROM EMPLOYMENT IF INCORRECT INFORMATION HAS BEEN PROVIDED TO
THE CONSTRUCTION INDUSTRY EMPLOYER.
(B) CONTRACTOR AND SUBCONTRACTOR COMPLIANCE.--EXCEPT AS
PROVIDED IN SUBSECTION (C), NOTHING IN THIS ACT MAY BE CONSTRUED
TO RENDER A CONTRACTOR RESPONSIBLE FOR A VIOLATION OF SECTION
3(A) BY A SUBCONTRACTOR OR A SUBCONTRACTOR RESPONSIBLE FOR A
VIOLATION BY ANOTHER SUBCONTRACTOR.
(C) GENERAL CONTRACTOR RESPONSIBILITY.--A CONTRACTOR SHALL
NOT BE CONSIDERED IN VIOLATION OF SECTION 3(A) WHEN A
SUBCONTRACTOR HAS KNOWINGLY EMPLOYED AN UNAUTHORIZED EMPLOYEE,
IF THE CONTRACTOR HAS DONE THE FOLLOWING:
(1) REQUIRED COMPLIANCE WITH THIS ACT IN THE CONTRACT
WITH THE SUBCONTRACTOR, INCLUDING PROVIDING FOR THE
TERMINATION OF THE CONTRACT UPON A VIOLATION OF THIS ACT BY
THE SUBCONTRACTOR.
(2) OBTAINED WRITTEN VERIFICATION FROM THE SUBCONTRACTOR
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THAT THE SUBCONTRACTOR IS AWARE OF THE PROVISIONS OF THIS ACT
AND IS RESPONSIBLE FOR COMPLIANCE.
Section 6 8 9. Effective date.
This act shall take effect in 60 days JULY 1, 2020.
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