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Beginning in October 2020, employers in the construction industry in Pennsylvania will be required to use E-Verify, to verify an employee’s work-authorization. Previously, Pennsylvania had a very limited E-Verify law - E-Verify was only required on publicly funded construction projects that exceed $25,000. A few days ago, Governor Tom Wolf declined to sign the bill or veto the bill; thus, it became law. Previously, the bill passed the House and Senate overwhelmingly.
The Pennsylvania Construction Industry Employer Verification Act (PCIEVA) prohibits an employer in the construction industry from knowingly employing unauthorized employees and requires the use of E-Verify. Furthermore, PCIEVA applies to all construction industry employers who transact business in Pennsylvania and employ at least one employee in the state. The law applies to sub-contractors at all tiers as well as to staffing agencies who supply workers to the construction industry.
PCIEVA defines the construction industry as those who “engage in the erection, reconstruction, demolition, alteration, modification, 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 paid for from public funds.”
The state Department of Labor and Industry (DOLI) 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. PCIEVA will be enforced by the state DOLI. Complaints regarding the employment of unauthorized individuals can be submitted to DOLI and DOLI will investigate them. DOLI may “enter and inspect” the place of business or place of employment at “any reasonable time” for the purpose of “examining and inspecting records of the employer that in any way relate to compliance” with the Act, including “full and accurate statements in writing … of the work authorization verification process for all employees ….” DOLI also may “interrogate persons” to ascertain whether an employer is in compliance.
First violations will result in a warning and a requirement that all unauthorized workers be terminated. For the second or subsequent offenses, employers 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 in the Commonwealth of Pennsylvania, can be suspended until the employer complies. Additionally, for repeat violators, a state court may order suspension of licenses to do business for at least a year and up to permanent revocation.
Additionally, employers are prohibited from retaliating against an employee who makes a complaint under the PCIEVA or participates in an investigation. An employee, who suffers retaliation, can file an action against the employer with these possible remedies: (1) 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.
Proof that the employer verified the employment authorization of an employee (who is later found to be unauthorized) through E-Verify creates a rebuttable presumption that the employer did not knowingly employ an unauthorized employee in violation of the Act. Moreover, an employer who uses E-Verify and fails to hire or terminates an employee based upon what turns out to be incorrect information in E-Verify will be immune from liability to the employee.
Records of the e-verification must be kept throughout the term of employment or for three years — whichever is longer. This is different than federal law, IRCA, because it requires ex-employees’ I-9 forms and any supporting to be retained for three years from the date of hire or one year after termination — whichever is longer.
If you are concerned about your company’s immigration compliance, including employment of undocumented workers, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.
