H.B. 1170, the Construction Industry Employee Verification Act, passed by the General Assembly of Pennsylvania in 2019, targets employers in Pennsylvania’s construction industry. Construction industry employers must verify all new hires in E-Verify. The requirement applies to sub-contractors at all tiers as well as to staffing agencies who supply workers to the construction industry.
The Department of Labor is authorized to investigate complaints, even anonymous complaints, and will have the authority to inspect places of business, copy records, and interview employers and employees.
First violations will result in a warning and a requirement that all unauthorized workers be terminated. Second and subsequent violations will result in prosecution by the Attorney General’s office.
Employers who are found to have violated the Act a second or subsequent time may be put on probation for three years; and required to file quarterly reports confirming the verification of all new hires. If the employer fails to comply with the terms of probation, the employer’s license(s) to do business can be suspended until the employer complies. For repeat violators, the court can order suspension of licenses to do business for at least a year and up to permanent revocation.
Participation in E-Verify and proof that an employee was verified in E-Verify is a rebuttable presumption that the employer did not knowingly hire an unauthorized worker. An employer will have an affirmative defense against a complaint that it hired an unauthorized worker if it can show a “good faith” effort to comply with federal immigration law and E-Verify rules.
Employers are prohibited from retaliating against an employee who makes a complaint under the Act or participates in an investigation. An employee so retaliated against can file an action against the employer and, if s/he prevails, can be 1) have their employment reinstated; 2) restitution of three times the amount of any wages and benefits lost; 3) attorney’s fees; and any other relief awarded by the court.
E-Verify required for Pennsylvania public contractors
Employers holding public contracts in Pennsylvania must enroll in E-Verify to ensure that all employees performing work on public work projects are authorized to work in the United States. The state defines a “public works project” as:
“… construction, reconstruction, demolition, alteration and/or 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 twenty-five thousand dollars ($25,000) but shall not include work performed under a rehabilitation or manpower training program.”
Failure to comply can result in the loss of eligibility to work on public contracts. While the first violation will result only in a public warning, third and subsequent violations can debar a contractor from public work for 180-365 days. For a willful violation, the contractor can lose eligibility for three years. Contractors will also be penalized up to $1,000 for each violation.