By: Lisa M. Wampler
Since the enactment of the Immigration Reform and Control Act of 1986, every employer in the country has been required to complete and retain a Form I-9 for every employee hired after November 6, 1986 to confirm an employee’s citizenship/immigration status. With respect to construction employers on public projects in Pennsylvania, similar eligibility requirements have existed since the Commonwealth’s passage of the Public Works Employment Verification Act, 43 P.S. § 167.1, et seq., in 2013.
Under this piece of legislation, a construction employer is required to use the E-Verify Program to verify the employment eligibility of each new employee hired after January 1, 2013 within five business days of the hire. E-Verify is a web-based program administered by the U.S. Citizenship and Immigration Services and the Social Security Administration that allows employers to electronically check an employee’s work authorization.
Starting on October 7, 2020, all construction-industry employers in the Commonwealth are now required to utilize the E-Verify system to confirm that new hires are eligible for employment in the United States regardless of project sector. The Pennsylvania Construction Industry Employee Verification Act (Act 75) applies to all construction industry employers who conduct business in the Commonwealth of Pennsylvania and employ at least one employee in the Commonwealth. This requirement applies to subcontractors at all tiers, as well as staffing agencies that supply workers to the construction industry.
Act 75 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.
If an employer falls under the purview of Act 75, said employer is required to match the information from the employee’s Form I-9 with that on the E-Verify system. Once verified, the employer is required to maintain a record of such verification for the duration of the employee’s employment, or three years, whichever is longer.
The Department of Labor & Industry’s Bureau of Labor Law Compliance is responsible for enforcing the provisions of Act 75. The Department has the authority to:
- 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;
- Copy any and all records as Labor & Industry may deem necessary or appropriate;
- Require from the employer a full and accurate statement, in writing, of the employer’s work verification process; and
- Interrogate persons to determine whether the employer is in compliance with the Act.
A violation of Act 75 carries with it a number of penalties. First-time offenders will receive a warning and be required to terminate all unauthorized workers. Second and subsequent violations will result in prosecution by the Pennsylvania Attorney General’s office. Such employers may be put on probation for three years and will be 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 (which by definition includes articles of incorporation) can be suspended through the Attorney General until the employer complies. For repeat violators, the court can order the suspension of licenses to do business for at least a year and up to permanent revocation.
Contractors and subcontractors may be able to avoid these penalties if they establish that they used the E-Verify system in good faith. In addition, under Act 75’s “safe harbor” provision, a contractor can avoid secondary liability for its subcontractors’ violations if the contractor requires compliance with Act 75 in its subcontracts. In addition to including a provision that terminates the subcontract if a court orders sanctions against the subcontractor for an Act 75 violation, a contractor must also obtain written verification from the subcontractor that it is aware of the provisions of Act 75 and is responsible for compliance.
Lastly, the Act provides protections for employees who have been involved in an Act 75 inquiry. Specifically, the Act prohibits a construction industry employer from discharging, threatening, or otherwise retaliating or discriminating against an employee because the employee participated in an investigation, hearing, or other inquiry under the Act, or made reports or complaints regarding violations of the Act to the employer or a governmental authority. Employers should take note that an employee who believes they have been a target of retaliation or discrimination has three years to seek redress, which includes filing an action in the Court of Common Pleas for reinstatement or restitution