| HOUSE AMENDED |
| PRIOR PRINTER'S NOS. 645, 992, 1242, 1745, 2341 | PRINTER'S NO. 2347 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY WARD, BREWSTER, SCARNATI, McILHINNEY, EICHELBERGER, D. WHITE, VOGEL, RAFFERTY, BRUBAKER, ORIE, FONTANA, ALLOWAY, GREENLEAF, WAUGH, ARGALL, PICCOLA AND WASHINGTON, FEBRUARY 24, 2011 |
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| AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES, JUNE 29, 2012 |
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| AN ACT |
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1 | Amending Title 62 (Procurement) of the Pennsylvania Consolidated | <-- |
2 | Statutes, in contracts for public works, providing for |
3 | verification of the employment eligibility of all employees |
4 | for purposes of wage reporting and employment eligibility; |
5 | and prescribing penalties; and establishing good faith | <-- |
6 | immunity under certain circumstances. |
7 | Requiring public works contractors and subcontractors to verify | <-- |
8 | employment eligibility; providing for the powers and duties |
9 | of the Department of General Services; prescribing sanctions; |
10 | and establishing good faith immunity under certain |
11 | circumstances. |
12 | The General Assembly of the Commonwealth of Pennsylvania |
13 | hereby enacts as follows: |
14 | Section 1. Chapter 39 of Title 62 of the Pennsylvania | <-- |
15 | Consolidated Statutes is amended by adding a subchapter to read: |
16 | SUBCHAPTER F |
17 | EMPLOYMENT VERIFICATION |
18 | Sec. |
19 | 3951. Scope of subchapter. |
20 | 3952. Definitions. |
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1 | 3953. Verification. |
2 | 3954. Violations. |
3 | 3955. Enforcement and sanctions. |
4 | 3956. Protection from retaliation. |
5 | 3957. Good faith immunity. | <-- |
6 | § 3951. Scope of subchapter. |
7 | This subchapter relates to verification of employment on |
8 | certain public works projects. |
9 | § 3952. Definitions. |
10 | The following words and phrases when used in this subchapter |
11 | shall have the meanings given to them in this section unless the |
12 | context clearly indicates otherwise: |
13 | "Department." The Department of Labor and Industry of the |
14 | Commonwealth. |
15 | "Employee." An individual hired by a public works contractor |
16 | after the effective date of this subchapter for whom a public |
17 | works contractor is required by law to file a Form W-2 with the |
18 | Internal Revenue Service. |
19 | "EVP." The E-Verify Program operated by the Department of |
20 | Homeland Security that electronically verifies employment |
21 | eligibility for employees. |
22 | "INA." The Immigration and Nationality Act (66 Stat. 163, 8 |
23 | U.S.C. § 1101 et seq.). |
24 | "Public body." The Commonwealth of Pennsylvania, any of its |
25 | political subdivisions, any authority created by the General |
26 | Assembly of the Commonwealth and any instrumentality or agency |
27 | of the Commonwealth. |
28 | "Public work." Construction, reconstruction, demolition, |
29 | alteration and repair work other than maintenance work, done |
30 | under contract and paid for in whole or in part out of the funds |
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1 | of a public body where the estimated cost of the total project |
2 | is in excess of $25,000. The term shall not include work |
3 | performed under a rehabilitation or manpower training program. |
4 | "Public works contractor." A contractor that provides goods |
5 | or services under a contract involving a public works project. |
6 | "Public works project." A project involving a public work. |
7 | "Secretary." The Secretary of Labor and Industry of the |
8 | Commonwealth. |
9 | "Subcontractor." A person, other than a natural person, |
10 | regardless of its tier, including, but not limited to, a |
11 | staffing agency, that performs work for a public works |
12 | contractor under a contract for a public work. |
13 | "Willful." Action or conduct undertaken intentionally or |
14 | with reckless disregard for or deliberate ignorance of the |
15 | requirements and obligations established by this subchapter. |
16 | § 3953. Verification. |
17 | (a) General rule.--As a precondition of being awarded a |
18 | contract for a public work, and prior to the execution of the |
19 | contract, a public works contractor shall provide the public |
20 | body with which the contract will be made a verification |
21 | statement in which it shall represent the following subject to | <-- |
22 | and consistent with Federal immigration law: |
23 | (1) The public works contractor will verify the | <-- |
24 | employment eligibility of a new employee for employment |
25 | purposes prior to the commencement of work by the new |
26 | employee through EVP in accordance with Federal law governing |
27 | the use of EVP has registered with and participates in EVP | <-- |
28 | and will continue to participate in EVP throughout the length |
29 | of the contract. |
30 | (2) The public works contractor will provide the public |
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1 | body with the verification statement required under |
2 | subsection (b) from each subcontractor it uses or intends to |
3 | use on the public works project prior to the commencement of |
4 | any work by the subcontractor on the public works project. |
5 | (3) The public works contractor will provide a |
6 | certification from the department verifying that the |
7 | contractor has not previously violated this subchapter. |
8 | (b) Subcontractor verification statements.--Prior to the |
9 | execution of a subcontract with a public works contractor, a |
10 | subcontractor shall provide the public works contractor with a |
11 | verification statement containing substantially the same |
12 | information about the subcontractor as required under subsection |
13 | (a) about the public works contractor. The subcontractor shall |
14 | submit the verification statement to the contractor prior to the |
15 | commencement of any work by the subcontractor on the public |
16 | works project. |
17 | (c) Form.--The verification statement required by this |
18 | section shall be on a form prescribed by the secretary and shall |
19 | comply with the following additional requirements: |
20 | (1) The statement shall include a certification that the |
21 | information in the statement is true and correct and that the |
22 | person signing the statement understands that the submission |
23 | of false or misleading information in connection with the |
24 | verification shall subject the person and the public works |
25 | contractor or subcontractor, as the case may be, to sanctions |
26 | provided by law. |
27 | (2) The statement shall be signed by a representative of |
28 | the public works contractor or subcontractor, as applicable, |
29 | who has sufficient knowledge and authority to make the |
30 | representations and certifications contained in the |
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1 | 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 | <-- |
5 | this subchapter, shall not discriminate against any employee on |
6 | the basis of race, ethnicity, color or national origin. |
7 | § 3954. Violations. |
8 | The following shall constitute a violation of this |
9 | subchapter: |
10 | (1) Employment by a public works contractor or | <-- |
11 | subcontractor of an employee whose employment eligibility has |
12 | not been verified by EVP as required by this subchapter. |
13 | (2) (1) Use by a public works contractor of a | <-- |
14 | subcontractor on a public works project prior to the |
15 | submission by the subcontractor of a verification statement |
16 | required by this subchapter. |
17 | (3) (2) Commencement of work by a subcontractor on a | <-- |
18 | public works project prior to submitting to the public works |
19 | contractor a verification statement required by this |
20 | subchapter. |
21 | (4) Making a false statement or misrepresentation in a | <-- |
22 | verification statement required by this subchapter. |
23 | (3) The public works contractor or subcontractor does | <-- |
24 | not participate in EVP throughout the length of the contract |
25 | as stated as true and correct under the verification |
26 | statement required by this subchapter. |
27 | § 3955. Enforcement and sanctions. |
28 | (a) General rule.--The secretary shall enforce the |
29 | provisions of this subchapter. |
30 | (b) Investigation of complaints.--The secretary shall |
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1 | accept, review and investigate in a timely manner any credible |
2 | complaint that a public works contractor or subcontractor has |
3 | violated a provision of this subchapter. |
4 | (c) Audits.--To ensure compliance with the requirements of |
5 | this subchapter, the secretary shall conduct complaint-based and |
6 | random audits of public works contractors and subcontractors in |
7 | this Commonwealth. In conducting such audits, the secretary |
8 | shall evaluate the process utilized by the public works |
9 | contractors and subcontractors in complying with the |
10 | requirements of this subchapter. |
11 | (d) Sanctions.--A public works contractor or subcontractor |
12 | that willfully engages in violations described in section |
13 | 3954(1), (2) or (3): |
14 | (1) For a first offense relating to the public contract, |
15 | a warning letter may be issued by the secretary detailing the |
16 | violation. The letter shall be posted on the department's |
17 | Internet website. |
18 | (2) For a second offense relating to the public |
19 | contract: |
20 | (i) At the discretion of the public body with which |
21 | the public works contractor has contracted, may be |
22 | subject to termination of the contract by the public body |
23 | without recourse against or penalty to the public body |
24 | and a fine of up to $2,000. The right of the public body | <-- |
25 | to terminate the contract under this subparagraph may not |
26 | be waived. |
27 | (ii) At the discretion of the public works |
28 | contractor with whom the subcontractor has contracted, |
29 | may be subject to termination of the subcontract by the |
30 | public works contractor without recourse against or |
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1 | penalty to the public works contractor. The right of the |
2 | public works contractor to terminate the subcontract |
3 | under this subparagraph may not be waived. |
4 | (3) For a third or subsequent offense relating to the |
5 | public contract, at the discretion of the secretary, in |
6 | addition to the sanctions in paragraph (2), shall be subject |
7 | to debarment under section 531 (relating to debarment or |
8 | suspension) for one year three years. | <-- |
9 | § 3956. Protection from retaliation. |
10 | (a) General rule.--It shall be unlawful for a public works |
11 | contractor or subcontractor to discharge, threaten or otherwise |
12 | retaliate or discriminate against an employee regarding |
13 | compensation or other terms or conditions of employment because |
14 | the employee: |
15 | (1) participates in an investigation, hearing or inquiry |
16 | held by the secretary or any other governmental authority |
17 | under this subchapter; or |
18 | (2) reports or makes a complaint regarding the violation |
19 | of this subchapter to a public works contractor, |
20 | subcontractor or governmental authority. |
21 | (b) Actions.-- |
22 | (1) Any employee who suffers retaliation or |
23 | discrimination in violation of this section may bring an |
24 | action in a court of common pleas in accordance with |
25 | established civil procedures of this Commonwealth. |
26 | (2) The action must be brought within three years from |
27 | the date the employee knew of the retaliation or |
28 | discrimination. |
29 | (c) Relief.--If an employee prevails in an action commenced |
30 | under this section, the employee shall be entitled to the |
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1 | following relief: |
2 | (1) Reinstatement of the employee, if applicable. |
3 | (2) Restitution equal to three times the amount of the |
4 | employee's wages and fringe benefits calculated from the date |
5 | of the violation or discrimination. |
6 | (3) Reasonable attorney fees and costs of the action. |
7 | (4) Any other legal and equitable relief as the court |
8 | deems appropriate. |
9 | § 3957. Good faith immunity. | <-- |
10 | A public works contractor or subcontractor that relies in |
11 | good faith on EVP procedures to verify the employment |
12 | eligibility of employees shall be immune from the sanctions |
13 | authorized under section 3955 (relating to enforcement and |
14 | sanctions) in the event that incorrect information has been |
15 | provided to the public works contractor or subcontractor. |
16 | Section 2. This act shall take effect in 60 days. |
17 | Section 1. Short title. | <-- |
18 | This act shall be known and may be cited as the Public Works |
19 | Employment Verification Act. |
20 | Section 2. Definitions. |
21 | The following words and phrases when used in this act shall |
22 | have the meanings given to them in this section unless the |
23 | context clearly states otherwise: |
24 | "Department." The Department of General Services of the |
25 | Commonwealth. |
26 | "Employee." An individual hired by a public works contractor |
27 | or subcontractor for whom a public works contractor or |
28 | subcontractor is required by law to file a Form W-2 with the |
29 | Internal Revenue Service. |
30 | "EVP." The E-Verify Program operated by the Department of |
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1 | Homeland Security that electronically verifies employment |
2 | eligibility for employees. |
3 | "Public body." The Commonwealth of Pennsylvania, any of its |
4 | political subdivisions, any authority created by the General |
5 | Assembly of the Commonwealth and any instrumentality or agency |
6 | of the Commonwealth. |
7 | "Public work." As defined under section 2 of the act of |
8 | August 15, 1961 (P.L.987, No.442), known as the Pennsylvania |
9 | Prevailing Wage Act. |
10 | "Public works contractor." A contractor that provides work |
11 | under a contract involving a public work. |
12 | "Secretary." The Secretary of General Services of the |
13 | Commonwealth. |
14 | "Subcontractor." A person, other than a natural person, |
15 | regardless of its tier, including, but not limited to, a |
16 | staffing agency that performs work for a public works contractor |
17 | under a contract for a public work. The term shall not include |
18 | persons that are material suppliers for a project. |
19 | "Willful." Action or conduct undertaken intentionally or |
20 | with reckless disregard for or deliberate ignorance of the |
21 | requirements and obligations established under this act. |
22 | Section 3. Duty of public works contractors and subcontractors. |
23 | (a) General rule.--A public works contractor or |
24 | subcontractor shall participate in EVP and shall, subject to the |
25 | requirements of Federal law governing the use of EVP, use EVP to |
26 | verify employment eligibility of each new employee. The |
27 | department shall post on its publicly accessible Internet |
28 | website information regarding the requirements of Federal law |
29 | governing the use of EVP. |
30 | (b) Discrimination prohibited.--In conducting the |
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1 | verification required by this section, a public works contractor |
2 | or subcontractor shall not discriminate against an employee on |
3 | the basis of race, ethnicity, color or national origin. |
4 | Section 4. Verification form. |
5 | (a) General rule for public works contractors.--As a |
6 | precondition of being awarded a contract for a public work, or |
7 | with respect to a contract that was awarded prior to the |
8 | effective date of this subsection but has not yet been executed, |
9 | prior to the execution of the contract, a public works |
10 | contractor shall provide the public body with a verification |
11 | form described in subsection (c), acknowledging its |
12 | responsibilities under and its compliance with section 3. |
13 | Contracts between a public works contractor and its |
14 | subcontractors shall contain information about the requirements |
15 | of this act. |
16 | (b) General rule for subcontractors.--Prior to commencing |
17 | work on a public works project, a subcontractor shall provide |
18 | the public body with a verification form described in subsection |
19 | (c) acknowledging its responsibilities and its compliance with |
20 | section 3. Contracts between a subcontractor and its |
21 | subcontractors shall contain information about the requirements |
22 | of this act. |
23 | (c) Form.--The verification form required by this section |
24 | shall be on a form prescribed by the secretary, and posted on |
25 | the Internet, and shall comply with the following additional |
26 | requirements: |
27 | (1) The statement shall include a certification that the |
28 | information in the statement is true and correct and that the |
29 | individual signing the statement understands that the |
30 | submission of false or misleading information in connection |
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1 | with the verification shall subject the individual and the |
2 | public works contractor or subcontractor, as the case may be, |
3 | to sanctions provided by law. |
4 | (2) The statement shall be signed by a representative of |
5 | the public works contractor or subcontractor, as applicable, |
6 | who has sufficient knowledge and authority to make the |
7 | representations and certifications contained in the |
8 | statement. |
9 | Section 5. Violations. |
10 | It is a violation of this act for a public works contractor |
11 | or subcontractor on a public work to: |
12 | (1) Fail to verify the employment eligibility of a new |
13 | employee through EVP in accordance with Federal law. |
14 | (2) Not provide the verification form as required under |
15 | section 4, or to make a false statement or misrepresentation |
16 | with respect to completing the form. |
17 | Section 6. Enforcement and sanctions. |
18 | (a) General rule.--The department shall enforce this act. |
19 | (b) Investigation of complaints.--The department shall |
20 | accept, review and investigate in a timely manner any credible |
21 | complaint that a public works contractor or subcontractor has |
22 | violated a provision of this act. |
23 | (c) Audits.--To ensure compliance with the requirements of |
24 | this act, the department shall conduct complaint-based and |
25 | random audits of public works contractors and subcontractors in |
26 | this Commonwealth. |
27 | (d) Sanctions.--The following sanctions shall apply only to |
28 | a violation under section 5(1): |
29 | (1) For a first violation, a public works contractor or |
30 | subcontractor shall receive a warning letter from the |
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1 | department detailing the violation. The letter shall be |
2 | posted on the department's Internet website. |
3 | (2) For a second violation, a public works contractor or |
4 | subcontractor shall be debarred from public work for 30 days. |
5 | (3) For a third violation and subsequent violations, a |
6 | public works contractor or subcontractor shall be debarred |
7 | from public work for not less than 180 days and not more than |
8 | one year. |
9 | (4) In the case of an alleged willful violation, the |
10 | secretary shall file a petition in Commonwealth Court seeking |
11 | to have the court issue a rule to show cause why a public |
12 | works contractor or subcontractor did not engage in the |
13 | willful violation. If the court finds that the public works |
14 | contractor or subcontractor engaged in a willful violation, |
15 | the court shall order that the public works contractor or |
16 | subcontractor be debarred from public work for a period of |
17 | three years. |
18 | (5) Notwithstanding the provisions of paragraph (1), (2) |
19 | or (3), a violation by a public works contractor or |
20 | subcontractor that occurs ten years or more after a prior |
21 | violation shall be deemed to be a first violation. |
22 | (6) For the purposes of assessing sanctions, violations |
23 | committed by a contractor or subcontractor subject to this |
24 | act involving a single public works contract shall be |
25 | considered a single violation despite the number of employees |
26 | that are the subject of the violations. |
27 | (e) Civil penalty.--A public works contractor or |
28 | subcontractor that violates section 5(2) shall be subject to a |
29 | civil penalty of not less than $250 and not more than $1,000 for |
30 | each violation, to be imposed by the department. |
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1 | (f) Notice and appeal.--Actions taken by the department |
2 | under subsections (d)(1), (2) and (3) and (e) shall be subject |
3 | to the notice, appeal and other provisions of 2 Pa.C.S. |
4 | (relating to administrative law and procedure). |
5 | Section 7. Protection from retaliation. |
6 | (a) General rule.--It shall be unlawful for a public works |
7 | contractor or subcontractor to discharge, threaten or otherwise |
8 | retaliate or discriminate against an employee regarding |
9 | compensation or other terms or conditions of employment because |
10 | the employee: |
11 | (1) participates in an investigation, hearing or inquiry |
12 | held by the secretary or any other governmental authority |
13 | under this act; or |
14 | (2) reports or makes a complaint regarding the violation |
15 | of this act to a public works contractor or subcontractor or |
16 | to any governmental authority. |
17 | (b) Actions.-- |
18 | (1) An employee who suffers retaliation or |
19 | discrimination in violation of this section may bring an |
20 | action in a court of common pleas in accordance with |
21 | established civil procedures of this Commonwealth. |
22 | (2) The action must be brought within 180 days from the |
23 | date the employee knew of the retaliation or discrimination. |
24 | (c) Relief.--If an employee prevails in an action commenced |
25 | under this section, the employee shall be entitled to the |
26 | following relief: |
27 | (1) Reinstatement of the employee, if applicable. |
28 | (2) Restitution equal to three times the amount of the |
29 | employee's wages and fringe benefits calculated from the date |
30 | of the retaliation or discrimination. |
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1 | (3) Reasonable attorney fees and costs of the action. |
2 | (4) Any other legal and equitable relief as the court |
3 | deems appropriate. |
4 | Section 8. Good faith immunity. |
5 | A public works contractor or subcontractor that relies in |
6 | good faith on EVP procedures to verify employment eligibility of |
7 | new employees under this act shall be immune from the sanctions |
8 | authorized under section 6 and shall have no liability to an |
9 | individual who is not hired or who is discharged from employment |
10 | in the event that incorrect information has been provided to the |
11 | public works contractor or subcontractor. A public works |
12 | employer contractor or subcontractor that can produce written | <-- |
13 | acknowledgment provided by an applicable Federal agency of use |
14 | of EVP is considered to have acted in good faith. |
15 | Section 9. Public works contractor and subcontractor liability. |
16 | Nothing in this act may be construed to render a public works |
17 | contractor liable for the action of a subcontractor or a |
18 | subcontractor liable for an action of another subcontractor. |
19 | Section 10. Rules and regulations. |
20 | The department may promulgate rules and regulations necessary |
21 | to administer and enforce this act. |
22 | Section 11. Cooperation among departments. |
23 | The department may enter into agreements with the Department |
24 | of Labor and Industry or any other Commonwealth agency to |
25 | provide for the cooperative enforcement of the provisions of |
26 | this act. |
27 | Section 20. Effective date. |
28 | This act shall take effect January 1, 2013. |
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