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Pennsylvania Construction E-Verify Law Now in Effect

The Pennsylvania Construction Industry Employee Verification Act (PCIEVA) quietly went into effect on October 7, 2020 while all eyes were on Pennsylvania concerning the presidential campaign. (As I write this on November 6, all eyes continue to be on Pennsylvania concerning the presidential vote count.) Under the PCIEVA, all construction industry companies, performing public work in Pennsylvania or paid with public funds, must utilize E-Verify for all employees hired on or after October 6, 2020.

Although the title of the PCIEVA would initially lead you to believe it only applies to construction companies, general contractors, electrical subcontractors, roofing contractors, etc., it also applies to manufacturers of construction materials and equipment. Why? Because the definition of the “construction industry” is quite broad. The Act defines “construction industry” as those “which engages 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 work paid for from public funds.”

The PCIEVA also has a broad definition of a “Construction industry employer.” It is an “individual, entity or organization in the construction industry, which transacts business in this Commonwealth; and  employs at least one employee in this Commonwealth.” Moreover, the term also includes a “staffing agency that supplies workers to a construction industry employer.”

Thus, under the PCIEVA, manufacturers of construction equipment and materials performing public work or paid with public funds are required to use E-Verify. How should one determine whether it is subject to the PCIEVA?  Look at the statute’s definition and whether the work will be on or for a public project.

Who and how is the PCIEVA enforced? The Pennsylvania Department of Labor & Industry (PDLI) enforces this law. There is a complaint form entitled “Act 75 Complaint” on the PDLI website.  Pursuant to an investigation of a complaint, the PDLI has the power to: (1)  enter and inspect the place of business or place of employment of any employer of employees in any occupation in this Commonwealth at any reasonable time for the purpose of examining and inspecting records of the employer that in any way relate to compliance with the PCIEVA; (2)  copy any or all records as the PDLI may deem necessary or appropriate; (3)  require from an employer full and accurate statements in writing of the work authorization verification process for all employees in the employer’s employment; and (4)  interrogate persons for the purpose of ascertaining whether an employer has complied with the PCIEVA.

What are the penalties? If, after an investigation, it is determined the alleged employee is an unauthorized employee, the PDLI shall do all of the following:

For a first violation, the PDLI shall issue a warning letter detailing the violation and informing the construction industry employer of the provisions of the PCIEVA. The PDLI may not issue a warning letter if the employer demonstrates that the employment eligibility of the unauthorized employee was verified in good faith through the E-Verify program.

After the issuance of a warning letter, the employer shall verify in writing to the PDLI within 10 business days that the employer has terminated the employment of each unauthorized employee in the Commonwealth.

For a second or subsequent violation, the PDLI shall refer the case to the Attorney General, who shall bring an action against the employer in the county where the unauthorized employee is or was employed by the employer.

Upon a finding of a violation pursuant to an action brought by the Attorney General under the PCIEVA, the court shall order: (1)  The employer to terminate the employment of each unauthorized employee; and (2)  The employer to undergo a three-year probationary period for each business location where the unauthorized employee performed work. Furthermore, the court shall order agencies to suspend each license that is held by the employer if the employer fails to timely submit the verification. Each license that is suspended under this paragraph shall remain suspended until the employer complies. Notwithstanding any other law, on filing of the verification, each license shall be reinstated immediately by the appropriate agency.

For a second violation, the court may order the agency to suspend each license that is held by the employer for a period not to exceed 30 business days. For a subsequent violation or a violation occurring during a three-year probationary period, the court shall order suspension for a term not less than one year ,up to the permanent revocation of each license.

A general contractor may be found in violation for its subcontractor’s violations if the general contractor includes subcontract provisions that require the subcontractor’s compliance with the PCIEVA and automatic termination of the subcontract upon court-ordered sanctions for a violation by the subcontractor, and obtains a written verification from the subcontractor that it is aware of the provisions of the PCIEVA and is responsible for compliance.

Under this new law, ICE could compare a list of companies which have registered with E-Verify under PCIEVA to potential construction industry targets to determine if one or more of the targets failed to register for E-Verify. Thus, construction industry companies, covered by the PCIEVA, must be diligent in registering and utilizing E-Verify.

Prior to the passage of  the PCIEVA, Pennsylvania had a law, Public Works Employment Verification Act, which required the use of E-Verify regarding state projects over $25,000. This law remains in effect.

If you are concerned about your company’s immigration compliance, 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.

Bruce Buchanan is a Partner at Sebelist Buchanan PLLC. Mr. Buchanan is admitted to practice in Tennessee, Georgia, Florida, and Arkansas, and before the U.S. Court of Appeals for the Fifth, Sixth, Eighth, and D.C. Circuit.