PUBLIC WORKS EMPLOYMENT VERIFICATION ACT — 2012 Pa. Act 127 (historical enacted text)

Historical Act text

HOUSE AMENDED
PRIOR PRINTER'S NOS. 645, 992, 1242, 1745, 2341PRINTER'S NO. 2347
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.637Session of2011
INTRODUCED BY WARD, BREWSTER, SCARNATI, McILHINNEY, EICHELBERGER, D. WHITE, VOGEL, RAFFERTY, BRUBAKER, ORIE, FONTANA, ALLOWAY, GREENLEAF, WAUGH, ARGALL, PICCOLA AND WASHINGTON, FEBRUARY 24, 2011
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES, JUNE 29, 2012
AN ACT
1 Amending Title 62 (Procurement) of the Pennsylvania Consolidated <--
Statutes, in contracts for public works, providing for
verification of the employment eligibility of all employees
for purposes of wage reporting and employment eligibility;
5 and prescribing penalties; and establishing good faith <--
immunity under certain circumstances.
7 Requiring public works contractors and subcontractors to verify <--
employment eligibility; providing for the powers and duties
of the Department of General Services; prescribing sanctions;
and establishing good faith immunity under certain
circumstances.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
14 Section 1. Chapter 39 of Title 62 of the Pennsylvania <--
Consolidated Statutes is amended by adding a subchapter to read:
SUBCHAPTER F
EMPLOYMENT VERIFICATION
Sec.
3951. Scope of subchapter.
3952. Definitions.
3953. Verification.
3954. Violations.
3955. Enforcement and sanctions.
3956. Protection from retaliation.
5 3957. Good faith immunity. <--
§ 3951. Scope of subchapter.
This subchapter relates to verification of employment on
certain public works projects.
§ 3952. Definitions.
The following words and phrases when used in this subchapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Department." The Department of Labor and Industry of the
Commonwealth.
"Employee." An individual hired by a public works contractor
after the effective date of this subchapter for whom a public
works contractor is required by law to file a Form W-2 with the
Internal Revenue Service.
"EVP." The E-Verify Program operated by the Department of
Homeland Security that electronically verifies employment
eligibility for employees.
"INA." The Immigration and Nationality Act (66 Stat. 163, 8
U.S.C. § 1101 et seq.).
"Public body." The Commonwealth of Pennsylvania, any of its
political subdivisions, any authority created by the General
Assembly of the Commonwealth and any instrumentality or agency
of the Commonwealth.
"Public work." Construction, reconstruction, demolition,
alteration and repair work other than maintenance work, done
under contract and paid for in whole or in part out of the funds
of a public body where the estimated cost of the total project
is in excess of $25,000. The term shall not include work
performed under a rehabilitation or manpower training program.
"Public works contractor." A contractor that provides goods
or services under a contract involving a public works project.
"Public works project." A project involving a public work.
"Secretary." The Secretary of Labor and Industry of the
Commonwealth.
"Subcontractor." A person, other than a natural person,
regardless of its tier, including, but not limited to, a
staffing agency, that performs work for a public works
contractor under a contract for a public work.
"Willful." Action or conduct undertaken intentionally or
with reckless disregard for or deliberate ignorance of the
requirements and obligations established by this subchapter.
§ 3953. Verification.
(a) General rule.--As a precondition of being awarded a
contract for a public work, and prior to the execution of the
contract, a public works contractor shall provide the public
body with which the contract will be made a verification
21 statement in which it shall represent the following subject to <--
and consistent with Federal immigration law:
23 (1) The public works contractor will verify the <--
employment eligibility of a new employee for employment
purposes prior to the commencement of work by the new
employee through EVP in accordance with Federal law governing
27 the use of EVP has registered with and participates in EVP <--
and will continue to participate in EVP throughout the length
of the contract.
(2) The public works contractor will provide the public
body with the verification statement required under
subsection (b) from each subcontractor it uses or intends to
use on the public works project prior to the commencement of
any work by the subcontractor on the public works project.
(3) The public works contractor will provide a
certification from the department verifying that the
contractor has not previously violated this subchapter.
(b) Subcontractor verification statements.--Prior to the
execution of a subcontract with a public works contractor, a
subcontractor shall provide the public works contractor with a
verification statement containing substantially the same
information about the subcontractor as required under subsection
(a) about the public works contractor. The subcontractor shall
submit the verification statement to the contractor prior to the
commencement of any work by the subcontractor on the public
works project.
(c) Form.--The verification statement required by this
section shall be on a form prescribed by the secretary and shall
comply with the following additional requirements:
(1) The statement shall include a certification that the
information in the statement is true and correct and that the
person signing the statement understands that the submission
of false or misleading information in connection with the
verification shall subject the person and the public works
contractor or subcontractor, as the case may be, to sanctions
provided by law.
(2) The statement shall be signed by a representative of
the public works contractor or subcontractor, as applicable,
who has sufficient knowledge and authority to make the
representations and certifications contained in the
statement.
2 (d) Discrimination prohibited.--In conducting the employment <--
3 eligibility required by this section, a A public works <--
4 contractor or its subcontractor, in performing the duties under <--
this subchapter, shall not discriminate against any employee on
the basis of race, ethnicity, color or national origin.
§ 3954. Violations.
The following shall constitute a violation of this
subchapter:
10 (1) Employment by a public works contractor or <--
subcontractor of an employee whose employment eligibility has
not been verified by EVP as required by this subchapter.
13 (2) (1) Use by a public works contractor of a <--
subcontractor on a public works project prior to the
submission by the subcontractor of a verification statement
required by this subchapter.
17 (3) (2) Commencement of work by a subcontractor on a <--
public works project prior to submitting to the public works
contractor a verification statement required by this
subchapter.
21 (4) Making a false statement or misrepresentation in a <--
verification statement required by this subchapter.
23 (3) The public works contractor or subcontractor does <--
not participate in EVP throughout the length of the contract
as stated as true and correct under the verification
statement required by this subchapter.
§ 3955. Enforcement and sanctions.
(a) General rule.--The secretary shall enforce the
provisions of this subchapter.
(b) Investigation of complaints.--The secretary shall
accept, review and investigate in a timely manner any credible
complaint that a public works contractor or subcontractor has
violated a provision of this subchapter.
(c) Audits.--To ensure compliance with the requirements of
this subchapter, the secretary shall conduct complaint-based and
random audits of public works contractors and subcontractors in
this Commonwealth. In conducting such audits, the secretary
shall evaluate the process utilized by the public works
contractors and subcontractors in complying with the
requirements of this subchapter.
(d) Sanctions.--A public works contractor or subcontractor
that willfully engages in violations described in section
3954(1), (2) or (3):
(1) For a first offense relating to the public contract,
a warning letter may be issued by the secretary detailing the
violation. The letter shall be posted on the department's
Internet website.
(2) For a second offense relating to the public
contract:
(i) At the discretion of the public body with which
the public works contractor has contracted, may be
subject to termination of the contract by the public body
without recourse against or penalty to the public body
24 and a fine of up to $2,000. The right of the public body <--
to terminate the contract under this subparagraph may not
be waived.
(ii) At the discretion of the public works
contractor with whom the subcontractor has contracted,
may be subject to termination of the subcontract by the
public works contractor without recourse against or
penalty to the public works contractor. The right of the
public works contractor to terminate the subcontract
under this subparagraph may not be waived.
(3) For a third or subsequent offense relating to the
public contract, at the discretion of the secretary, in
addition to the sanctions in paragraph (2), shall be subject
to debarment under section 531 (relating to debarment or
8 suspension) for one year three years. <--
§ 3956. Protection from retaliation.
(a) General rule.--It shall be unlawful for a public works
contractor or subcontractor 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 or any other governmental authority
under this subchapter; or
(2) reports or makes a complaint regarding the violation
of this subchapter to a public works contractor,
subcontractor or governmental authority.
(b) Actions.--
(1) Any 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
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 violation or discrimination.
(3) Reasonable attorney fees and costs of the action.
(4) Any other legal and equitable relief as the court
deems appropriate.
9 § 3957. Good faith immunity. <--
A public works contractor or subcontractor that relies in
good faith on EVP procedures to verify the employment
eligibility of employees shall be immune from the sanctions
authorized under section 3955 (relating to enforcement and
sanctions) in the event that incorrect information has been
provided to the public works contractor or subcontractor.
Section 2. This act shall take effect in 60 days.
17 Section 1. Short title. <--
This act shall be known and may be cited as the Public Works
Employment 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 states otherwise:
"Department." The Department of General Services of the
Commonwealth.
"Employee." An individual hired by a public works contractor
or subcontractor for whom a public works contractor or
subcontractor is required by law to file a Form W-2 with the
Internal Revenue Service.
"EVP." The E-Verify Program operated by the Department of
Homeland Security that electronically verifies employment
eligibility for employees.
"Public body." The Commonwealth of Pennsylvania, any of its
political subdivisions, any authority created by the General
Assembly of the Commonwealth and any instrumentality or agency
of the Commonwealth.
"Public work." As defined under section 2 of the act of
August 15, 1961 (P.L.987, No.442), known as the Pennsylvania
Prevailing Wage Act.
"Public works contractor." A contractor that provides work
under a contract involving a public work.
"Secretary." The Secretary of General Services of the
Commonwealth.
"Subcontractor." A person, other than a natural person,
regardless of its tier, including, but not limited to, a
staffing agency that performs work for a public works contractor
under a contract for a public work. The term shall not include
persons that are material suppliers for a project.
"Willful." Action or conduct undertaken intentionally or
with reckless disregard for or deliberate ignorance of the
requirements and obligations established under this act.
Section 3. Duty of public works contractors and subcontractors.
(a) General rule.--A public works contractor or
subcontractor shall participate in EVP and shall, subject to the
requirements of Federal law governing the use of EVP, use EVP to
verify employment eligibility of each new employee. The
department shall post on its publicly accessible Internet
website information regarding the requirements of Federal law
governing the use of EVP.
(b) Discrimination prohibited.--In conducting the
verification required by this section, a public works contractor
or subcontractor shall not discriminate against an employee on
the basis of race, ethnicity, color or national origin.
Section 4. Verification form.
(a) General rule for public works contractors.--As a
precondition of being awarded a contract for a public work, or
with respect to a contract that was awarded prior to the
effective date of this subsection but has not yet been executed,
prior to the execution of the contract, a public works
contractor shall provide the public body with a verification
form described in subsection (c), acknowledging its
responsibilities under and its compliance with section 3.
Contracts between a public works contractor and its
subcontractors shall contain information about the requirements
of this act.
(b) General rule for subcontractors.--Prior to commencing
work on a public works project, a subcontractor shall provide
the public body with a verification form described in subsection
(c) acknowledging its responsibilities and its compliance with
section 3. Contracts between a subcontractor and its
subcontractors shall contain information about the requirements
of this act.
(c) Form.--The verification form required by this section
shall be on a form prescribed by the secretary, and posted on
the Internet, and shall comply with the following additional
requirements:
(1) The statement shall include a certification that the
information in the statement is true and correct and that the
individual signing the statement understands that the
submission of false or misleading information in connection
with the verification shall subject the individual and the
public works contractor or subcontractor, as the case may be,
to sanctions provided by law.
(2) The statement shall be signed by a representative of
the public works contractor or subcontractor, as applicable,
who has sufficient knowledge and authority to make the
representations and certifications contained in the
statement.
Section 5. Violations.
It is a violation of this act for a public works contractor
or subcontractor on a public work to:
(1) Fail to verify the employment eligibility of a new
employee through EVP in accordance with Federal law.
(2) Not provide the verification form as required under
section 4, or to make a false statement or misrepresentation
with respect to completing the form.
Section 6. Enforcement and sanctions.
(a) General rule.--The department shall enforce this act.
(b) Investigation of complaints.--The department shall
accept, review and investigate in a timely manner any credible
complaint that a public works contractor or subcontractor has
violated a provision of this act.
(c) Audits.--To ensure compliance with the requirements of
this act, the department shall conduct complaint-based and
random audits of public works contractors and subcontractors in
this Commonwealth.
(d) Sanctions.--The following sanctions shall apply only to
a violation under section 5(1):
(1) For a first violation, a public works contractor or
subcontractor shall receive a warning letter from the
department detailing the violation. The letter shall be
posted on the department's Internet website.
(2) For a second violation, a public works contractor or
subcontractor shall be debarred from public work for 30 days.
(3) For a third violation and subsequent violations, a
public works contractor or subcontractor shall be debarred
from public work for not less than 180 days and not more than
one year.
(4) In the case of an alleged willful violation, the
secretary shall file a petition in Commonwealth Court seeking
to have the court issue a rule to show cause why a public
works contractor or subcontractor did not engage in the
willful violation. If the court finds that the public works
contractor or subcontractor engaged in a willful violation,
the court shall order that the public works contractor or
subcontractor be debarred from public work for a period of
three years.
(5) Notwithstanding the provisions of paragraph (1), (2)
or (3), a violation by a public works contractor or
subcontractor that occurs ten years or more after a prior
violation shall be deemed to be a first violation.
(6) For the purposes of assessing sanctions, violations
committed by a contractor or subcontractor subject to this
act involving a single public works contract shall be
considered a single violation despite the number of employees
that are the subject of the violations.
(e) Civil penalty.--A public works contractor or
subcontractor that violates section 5(2) shall be subject to a
civil penalty of not less than $250 and not more than $1,000 for
each violation, to be imposed by the department.
(f) Notice and appeal.--Actions taken by the department
under subsections (d)(1), (2) and (3) and (e) shall be subject
to the notice, appeal and other provisions of 2 Pa.C.S.
(relating to administrative law and procedure).
Section 7. Protection from retaliation.
(a) General rule.--It shall be unlawful for a public works
contractor or subcontractor 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 or any other governmental authority
under this act; or
(2) reports or makes a complaint regarding the violation
of this act to a public works contractor or subcontractor or
to any 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 180 days from the
date the employee knew of the retaliation or discrimination.
(c) Relief.--If an employee prevails in an action commenced
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 8. Good faith immunity.
A public works contractor or subcontractor that relies in
good faith on EVP procedures to verify employment eligibility of
new employees under this act shall be immune from the sanctions
authorized under section 6 and shall have no liability to an
individual who is not hired or who is discharged from employment
in the event that incorrect information has been provided to the
public works contractor or subcontractor. A public works
12 employer contractor or subcontractor that can produce written <--
acknowledgment provided by an applicable Federal agency of use
of EVP is considered to have acted in good faith.
Section 9. Public works contractor and subcontractor liability.
Nothing in this act may be construed to render a public works
contractor liable for the action of a subcontractor or a
subcontractor liable for an action of another subcontractor.
Section 10. Rules and regulations.
The department may promulgate rules and regulations necessary
to administer and enforce this act.
Section 11. Cooperation among departments.
The department may enter into agreements with the Department
of Labor and Industry or any other Commonwealth agency to
provide for the cooperative enforcement of the provisions of
this act.
Section 20. Effective date.
This act shall take effect January 1, 2013.