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| PRIOR PRINTER'S NO. 1961 | PRINTER'S NO. 2982 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY GALLOWAY, METCALFE, BELFANTI, GERGELY, BOYLE, BEYER, BRENNAN, CARROLL, D. COSTA, FABRIZIO, FRANKEL, GOODMAN, HARKINS, HORNAMAN, W. KELLER, LONGIETTI, MARSHALL, MENSCH, MOUL, MURT, M. O'BRIEN, RAPP, READSHAW, SABATINA, SIPTROTH, M. SMITH, SOLOBAY, VULAKOVICH, WAGNER, WANSACZ, WATSON, WHITE, YUDICHAK, OBERLANDER, CUTLER, LEVDANSKY, MUNDY, GIBBONS, K. SMITH, KULA, MELIO, PARKER, HENNESSEY, GRUCELA, QUINN, BURNS, SEIP, MURPHY, GEIST, PAYNE, KORTZ, DEASY, BRIGGS AND SANTARSIERO, JUNE 2, 2009 |
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| AS REPORTED FROM COMMITTEE ON LABOR RELATIONS, HOUSE OF REPRESENTATIVES, AS AMENDED, DECEMBER 8, 2009 |
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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 Social Security numbers of all employees |
4 | for purposes of wage reporting and employment eligibility; |
5 | prescribing penalties; and establishing good faith immunity |
6 | under certain circumstances. |
7 | The General Assembly of the Commonwealth of Pennsylvania |
8 | hereby enacts as follows: |
9 | Section 1. Chapter 39 of Title 62 of the Pennsylvania |
10 | Consolidated Statutes is amended by adding a subchapter to read: |
11 | SUBCHAPTER F |
12 | EMPLOYMENT VERIFICATION |
13 | Sec. |
14 | 3951. Scope of subchapter. |
15 | 3952. Definitions. |
16 | 3953. Verification. |
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1 | 3954. Violations. |
2 | 3955. Enforcement and sanctions. |
3 | 3956. Protection from retaliation. |
4 | 3957. Good faith immunity. |
5 | § 3951. Scope of subchapter. |
6 | This subchapter relates to verification of employment on |
7 | certain public works projects. |
8 | § 3952. Definitions. |
9 | The following words and phrases when used in this subchapter |
10 | shall have the meanings given to them in this section unless the |
11 | context clearly indicates otherwise: |
12 | "Employee." An individual for whom a public works contractor |
13 | or a subcontractor is required by law to file a Form W-2 with | <-- |
14 | the Internal Revenue Service. |
15 | "EVP." The E-Verify Program operated by the Department of |
16 | Homeland Security. |
17 | "INA." The Immigration and Nationality Act (66 Stat. 163, 8 |
18 | U.S.C. § 1101 et seq.). |
19 | "NVS." The Social Security Number Verification Service |
20 | operated by the Social Security Administration. |
21 | "Public work." As defined in section 2 of the act of August |
22 | 15, 1961 (P.L.987, No.442), known as the Pennsylvania Prevailing |
23 | Wage Act. |
24 | "Public works contractor." A contractor that provides goods |
25 | or services under a contract with a Commonwealth agency | <-- |
26 | involving a public works project. |
27 | "Public works project." A project involving a public work. |
28 | "Secretary." The Secretary of Labor and Industry of the |
29 | Commonwealth. |
30 | "Subcontractor." A person, other than a natural person, | <-- |
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1 | regardless of its tier, including, but not limited to, a |
2 | staffing agency, that performs work for a public works |
3 | contractor under a contract for a public work. |
4 | "Willful." Action or conduct undertaken intentionally or |
5 | with reckless disregard for or deliberate ignorance of the |
6 | requirements and obligations established by this subchapter. |
7 | § 3953. Verification. |
8 | (a) General rule.--As a precondition of being awarded a |
9 | contract for a public work, and prior to the execution of the |
10 | contract, a public works contractor shall provide the |
11 | Commonwealth agency with which the contract will be made a |
12 | verification statement in which it shall represent the |
13 | following: |
14 | (1) The public works contractor has verified the Social |
15 | Security numbers of all of its then-existing employees for |
16 | wage reporting purposes through NVS in accordance with |
17 | Federal law governing the use of NVS. |
18 | (2) The public works contractor will verify the Social |
19 | Security number of a new employee for employment eligibility |
20 | purposes prior to the commencement of work by within three | <-- |
21 | days following the first day of employment of the new |
22 | employee through EVP in accordance with Federal law governing |
23 | the use of EVP. |
24 | (3) The public works contractor will provide the |
25 | Commonwealth agency with the verification statement required |
26 | under subsection (b) from each subcontractor it uses or |
27 | intends to use on the public works project prior to the |
28 | commencement of any work by the subcontractor on the public |
29 | works project. |
30 | (b) Subcontractor verification statements.--Prior to the |
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1 | execution of a subcontract with a public works contractor, a |
2 | subcontractor shall provide the public works contractor with a |
3 | verification statement containing substantially the same |
4 | information about the subcontractor as required under subsection |
5 | (a) about the public works contractor. The subcontractor shall |
6 | submit the verification statement to the contractor prior to the |
7 | commencement of any work by the subcontractor on the public |
8 | works project. |
9 | (c) All verification statements.--The verification statement |
10 | required by this section shall be on a form prescribed by the |
11 | secretary and shall comply with the following additional |
12 | requirements: |
13 | (1) The statement shall include a certification that the |
14 | information in the statement is true and correct and that the |
15 | person signing the statement understands that the submission |
16 | of false or misleading information in connection with the |
17 | verification shall subject the person and the public works |
18 | contractor or subcontractor, as the case may be, to sanctions |
19 | provided by law. |
20 | (2) The statement shall be signed by a representative of |
21 | the public works contractor or subcontractor, as applicable, |
22 | who has sufficient knowledge and authority to make the |
23 | representations and certifications contained in the |
24 | statement. |
25 | (d) Discrimination prohibited.--In conducting the Social |
26 | Security number verification required by this section, a public |
27 | works contractor or its a subcontractor shall not discriminate | <-- |
28 | against any employee on the basis of race, ethnicity, color or |
29 | national origin. |
30 | (e) Application.--The requirements of this section regarding | <-- |
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1 | the verification of Social Security numbers shall not apply to |
2 | employees who are authorized under Federal law to work in the |
3 | United States without Social Security numbers. |
4 | § 3954. Violations. |
5 | The following shall constitute a violation of this |
6 | subchapter: |
7 | (1) Employment by a public works contractor or |
8 | subcontractor of an employee whose Social Security number has |
9 | not been verified by the NVS or EVP as required by this |
10 | subchapter, except during any period of time in which the | <-- |
11 | employer is awaiting resolution from the Federal Government |
12 | of a wage reporting or employment eligibility issue or |
13 | dispute regarding the employee. |
14 | (2) Use by a public works contractor of a subcontractor |
15 | on a public works project prior to the submission by the |
16 | subcontractor of a verification statement required by this |
17 | subchapter. |
18 | (3) Commencement of work by a subcontractor on a public |
19 | works project prior to submitting to the public works |
20 | contractor a verification statement required by this |
21 | subchapter. |
22 | (4) Making a false statement or misrepresentation in a |
23 | verification statement required by this subchapter. |
24 | § 3955. Enforcement and sanctions. |
25 | (a) General rule.--The secretary shall enforce the |
26 | provisions of this subchapter. |
27 | (b) Investigation of complaints.--The secretary shall |
28 | accept, review and investigate in a timely manner any credible |
29 | complaint that a public works contractor or subcontractor has |
30 | violated a provision of this subchapter. |
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1 | (c) Audits.--To ensure compliance with the requirements of |
2 | this subchapter, the secretary shall conduct complaint-based and |
3 | random audits of public works contractors and subcontractors in |
4 | this Commonwealth. In conducting such audits, the secretary |
5 | shall utilize NVS and EVP to verify the Social Security numbers |
6 | of employees for wage reporting purposes and employment |
7 | eligibility, as appropriate, in accordance with Federal law |
8 | governing the use of NVS and EVP. |
9 | (d) Sanctions.--The following sanctions shall apply to |
10 | violations of section 724A of INA 274A of the INA (8 U.S.C. § | <-- |
11 | 1324a) or of this act: |
12 | (1) A public works contractor or subcontractor that |
13 | violates section 724A 274A of INA or engages in violations | <-- |
14 | described in section 3954(1), (2) or (3) (relating to |
15 | violations): |
16 | (i) At For a second violation, at the discretion of | <-- |
17 | the secretary, may be subject to debarment under section |
18 | 531 (relating to debarment or suspension) for a period of |
19 | up to three years 90 days. For a subsequent violation, at | <-- |
20 | the discretion of the secretary, may be subject to |
21 | debarment under section 531 for a period of up to three |
22 | years. |
23 | (ii) At the discretion of the Commonwealth agency |
24 | with whom the public works contractor has contracted, may |
25 | be subject to termination of the contract by the |
26 | Commonwealth agency without recourse against or penalty |
27 | to the Commonwealth agency. The right of the Commonwealth |
28 | agency to terminate the contract under this subparagraph |
29 | may not be waived. |
30 | (iii) At the discretion of the public works |
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1 | contractor with whom the subcontractor has contracted, |
2 | may be subject to termination of the subcontract by the |
3 | public works contractor without recourse against or |
4 | penalty to the public works contractor. The right of the |
5 | public works contractor to terminate the subcontract |
6 | under this subparagraph may not be waived. |
7 | (2) A public works contractor or subcontractor that |
8 | willfully violates section 724A 274A of INA or willfully | <-- |
9 | engages in violations described in section 3954(1), (2) or |
10 | (3): |
11 | (i) Shall be subject to debarment under section 531 |
12 | for three years. |
13 | (ii) At the discretion of the Commonwealth agency |
14 | with which the public works contractor has contracted, |
15 | may be subject to termination of the contract by the |
16 | Commonwealth agency without recourse against or penalty |
17 | to the Commonwealth agency. The right of the Commonwealth |
18 | agency to terminate the contract under this subparagraph |
19 | may not be waived. |
20 | (iii) At the discretion of the public works |
21 | contractor with whom the subcontractor has contracted, |
22 | may be subject to termination of the subcontract by the |
23 | public works contractor without recourse against or |
24 | penalty to the public works contractor. The right of the |
25 | public works contractor to terminate the subcontract |
26 | under this subparagraph may not be waived. |
27 | § 3956. Protection from retaliation. |
28 | (a) General rule.--It shall be unlawful for a public works |
29 | contractor or subcontractor to discharge, threaten or otherwise |
30 | retaliate or discriminate against an employee regarding |
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1 | compensation or other terms or conditions of employment because |
2 | the employee: |
3 | (1) participates in an investigation, hearing or inquiry |
4 | held by the secretary or any other governmental authority |
5 | under this subchapter; or |
6 | (2) reports or makes a complaint regarding the violation |
7 | of this subchapter to a public works contractor, |
8 | subcontractor or governmental authority. |
9 | (b) Actions.-- |
10 | (1) Any employee who suffers retaliation or |
11 | discrimination in violation of this section may bring an |
12 | action in a court of common pleas in accordance with |
13 | established civil procedures of this Commonwealth. |
14 | (2) The action must be brought within three years from |
15 | the date the employee knew of the retaliation or |
16 | discrimination. |
17 | (c) Relief.--If an employee prevails in an action commenced |
18 | under this section, the employee shall be entitled to the |
19 | following relief: |
20 | (1) Reinstatement of the employee, if applicable. |
21 | (2) Restitution equal to three times the amount of the |
22 | employee's wages and fringe benefits calculated from the date |
23 | of the violation or discrimination. |
24 | (3) Reasonable attorney fees and costs of the action. |
25 | (4) Any other legal and equitable relief as the court |
26 | deems appropriate. |
27 | § 3957. Good faith immunity. |
28 | A public works contractor or subcontractor that relies in |
29 | good faith on NVS and EVP procedures to verify the Social |
30 | Security numbers of employees shall be immune from the sanctions |
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1 | authorized under section 3955 (relating to enforcement and |
2 | sanctions) and shall have no liability to an individual who is | <-- |
3 | not hired or is discharged from employment in the event that |
4 | incorrect information has been provided to the public works |
5 | contractor or subcontractor. |
6 | Section 2. This act shall take effect in 60 days. |
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